While the appeal by Google of an order to take down any copies of “Innocence of Muslims” awaits a decision by the Ninth Circuit on Google’s request for rehearing, there has been a development back down in the District Court.  Cindy Lee Garcia initially sought a preliminary injunction against Google to remove the availability of the video on YouTube, but she also sued many whom she alleged was the producer of the movie—Nakoula Basseley Nakoula, aka Mark Youssef—alleging that she had acted in a project she never knew would be used for the ultimate film, and that her dialogue was dubbed with the words that later caused such uproar and deadly violence.  When the preliminary injunction was denied by the District Court (in large part because of the court’s finding that she could not prevail on the merits of her copyright claim that she held an independent right in her acting performance), it appears that the remaining case was stayed as she went up on appeal of the injunction ruling.

That stay also froze the obligation of the remaining defendants to respond to the Complaint.  A party served with a summons and Complaint has essentially two options: it can move to dismiss, or it can file what is called an Answer.  A motion argues to the court that the case should be dismissed in whole or in part as matter of law.  An Answer response to the factual allegations of the Complaint.  It is in many ways a relic of more formal times, since it does not prove or disprove anything, and really just signals the commencement of the case and discovery soon after.  Ordinarily a party will admit uncontroverted allegations (like the identity of the parties) and deny or claim a lack of knowledge as to the remaining allegations.  Most lawyers would agree that trying to argue one’s case in an answer is a mistake, because it commits you to an articulation of events that may later turn out to be inconsistent with the facts as they develop in discovery.

Youssef has elected not to follow that approach.  His Answer, filed last week (without a lawyer), challenges head on the allegations by Garcia that she was an unwitting participant in the film.  Most pointedly, he counter-alleges that Garcia spoke the words that she claims were over her actual performance.  The bulk of the Answer disputes the effect of the film, otherwise combatively challenges Garcia’s underlying allegations and defends the thesis of the movie.

Although the view here remains that the District Court got it right on the law about Garcia’s copyright claim as she pleaded it, and the Ninth Circuit so far has gotten it wrong, this Answer does little to confront the copyright issues.  That is to say, even if Youssef were correct about what happened on the set (about which we have no information of course), if Garcia’s individual performance were copyrightable (and therefore gave Garcia the right to control its distribution), it wouldn’t really matter if she had said the words herself or they were dubbed. 

To put it another way: I wrote this blog post.  No one typed over it or altered it.  But if tomorrow I regret having written it, or just don’t like it anymore, I can forbid its further distribution as the owner of the copyright in it.  My motivations are irrelevant.  So, even Garcia had been an enthusiastic participant (again, purely hypothetically), if her copyright is valid she can now refuse to allow further distribution for whatever reason she wants.  And, whether she has that copyright in the first instance is a completely different question from whether she actually said what later made its way into the film.

So, the Answer is quite unlikely to change the course of the litigation very much, but a reminder that less is often more at the early stages of any litigation.