by Wendy Davis @wendyndavis, March 13, 2014

A recent order requiring Google's YouTube to take down the clip “Innocence of Muslims” could “wreak havoc” on filmmakers, Google warns in new court papers.

The company argues in a motion filed on Wednesday evening that the court's 2-1 decision is “unworkable,” on the grounds that it would allow almost anyone appearing in a clip to demand its removal.

A three-judge panel of the 9th Circuit Court of Appeals ruled last month that actress Cindy Lee Garcia -- who appeared for five seconds in the inflammatory 13-minute clip -- potentially has a copyright interest in her performance. The panel granted Garcia's request for a preliminary injunction against YouTube and directed the company to immediately take down any copies of the clip.

That decision surprised Internet law experts for many reasons, including that it appeared to give actors new veto power over online clips they don't like.

Google sought an emergency stay of the order. The panel denied that request, but modified the original order to allow Google to post as version of the clip without Garcia's performance. Several days after that ruling, one of the judges on the 9th Circuit appellate court took the rare step of calling for a new vote on whether to stay the order.



Google and Garcia responded by filing a new round of arguments on Wednesday night.

“The panel majority’s rules are not just wrong; they are also unworkable,” Google says in its latest papers. “They would wreak havoc on movie studios, documentary filmmakers and creative enterprises of all types by giving their most minor contributors potential control over their works.”

Google also points out that the Copyright Office recently rejected Garcia's application to copyright her performance in the film. (Garcia applied for a copyright in September 2012, but the office didn't issue a decision until March 6.) Garcia can sue for infringement, even though the Copyright Office refused to grant her a copyright, but Google argues that the rejection still “carries weight.”

The company adds that allowing an actor to copyright his or her brief performance in a movie would lead to absurd results. “Francis Ford Coppola, for example, might own the copyright to "The Godfather" -- minus a six-second piece here, and a 30-second piece there, and a two-minute portion at the end. Federal law does not make Swiss cheese of copyrights in this way,” the company argues.

Garcia says she was duped into appearing in "Innocence of Muslims" after answering a Backstage ad for a film called "Desert Warrior," which she thought was an adventure movie set in ancient Egypt. When the clip appeared on YouTube in September 2012, it was blamed for sparking a wave of protests in the Mideast. Garcia alleged in court papers that she received death threats after the film was posted to YouTube and lost her job, due to security concerns sparked by her appearance in the movie.

Garcia argues in her most recent court papers that the prior order should be upheld. “The panel balanced the risk to Ms. Garcia's life against Google's business interests, and chose Ms. Garcia's life,” she argues. “No harm will befall Google and YouTube if they comply with the order, other than perhaps a loss of ad revenue."

The 9th Circuit is expected to vote next week on whether to stay the takedown order.