UPDATE at 4:53 p.m., Monday, May 18, 2015: Someone has successfully posted a version of the film on YouTube. See it below.
A full panel of the U.S. Court of Appeals for the Ninth Circuit today allowed the banned Innocence of Muslims film to live on via YouTube.
A three-judge panel of that court last year ordered that the clip be taken down because an actress felt she was duped into appearing in the controversial take on the anti-Islamic look at the prophet Mohammed. The short film by a Coptic Christian from Cerritos, Nakoula Basseley Nakoula, has been blamed for inciting anti-Western violence in the Middle East.
The film's release once was believed to have partly inspired an attack on the U.S. Consulate in Benghazi that killed U.S. Ambassador J. Christopher Stevens in the summer of 2012, although that connection was later discounted.
Actress Cindy Lee Garcia said her appearance in the piece led to death threats. She argued that she did not agree to appear in such a film — that she was led to believe it would be an entirely different kind of production when she responded to a Southern California casting call.
Last year Ninth Circuit Chief Judge Alex Kozinski, in affirming her argument, wrote:
While answering a casting call for a low-budget amateur film doesn't often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that's exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior.”
But today a full, “en banc” panel of the court, in a 10-to-1 vote, argued that there was no reason to allow “prior restraint” — full-on censorship — when the panel ruled that YouTube needed to take down the film.
According to today's ruling:
The en banc court held that the injunction was unwarranted and incorrect as a matter of law and was a prior restraint that infringed the First Amendment values at state.
The majority of the court argued that Garcia didn't establish that she suffered “irreparable harm” as a result of the film's existence on YouTube. It found that her claim to a copyright of the performance was not viable separate from the production.
Kozinski's was the lone, dissenting vote, and he argued that Garcia would prevail if she pressed her case for copyright infringement because “Garcia's dramatic performance met all of the requirements for copyright protection.”
It appeared that YouTube had yet to restore the film's presence on its site. A representative for Google, YouTube's parent company, sent us this statement:
We have long believed that the previous ruling was a misapplication of copyright law. We're pleased with this latest ruling by the Ninth Circuit.
Garcia's attorney, Cris Armenta, was expected to issue a statement shortly. When she does, we'll post it below.
UPDATE at 4:53 p.m., Monday, May 18, 2015: Someone has successfully posted a version of the film within the last hour.