By Howard Mintz, San Jose Mercury News
SAN JOSE, CA — Google must take down a controversial anti-Muslim video on YouTube that sparked protests across the Muslim world because keeping it on the website violates the rights of an actress who sued after she was allegedly duped into appearing in the film, a divided federal appeals court ruled Wednesday.
In a 2-1 decision, the 9th U.S. Circuit Court of Appeals rejected Google’s arguments that being forced to take down the video, “Innocence of Muslims,” would be a prior restraint that would violate the company’s First Amendment protections.
“This is a troubling case,” Chief Judge Alex Kozinski wrote. “Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen.”
Garcia sued after she discovered she was in the video, after efforts to persuade Google to take it down from YouTube were repeatedly rebuffed. The actress had been cast in a minor role in a film called “Desert Warrior,” and paid $500 by director Mark Basseley Youssef, but the movie never materialized, according to court papers.
The actress discovered her scene had instead been used in the anti-Muslim film, which generated worldwide attention and was at first cited as a cause of the fatal attacks on the U.S. consulate in Benghazi, Libya.
In her suit, Garcia maintained that YouTube’s unrivaled popularity gave the film a broad audience, and that she had a right to get it removed because she had been misled by the director and retained copyright protections to her artistic work.
Google argued that taking the video down from YouTube would be futile because it is now in widespread circulation, but the 9th Circuit disagreed.
Judge N. Randy Smith dissented, finding that Garcia did not have a clear protection against the use of her work and that an injunction against Google goes too far.
Lawyers for Garcia and Google could not immediately be reached for comment. Google can ask the 9th Circuit to rehear the case with an 11-judge panel.
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