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As many folks in the entertainment, media and technology sectors await word on whether the 9th Circuit Court of Appeals will rehear a controversial ruling last month that ordered Google to remove copies of Innocence of Muslims from YouTube, actress Cindy Lee Garcia is now demanding that Google be sanctioned.
In an emergency motion for a finding of contempt on Tuesday, Garcia’s lawyers say that despite being given 24 hours as of Feb. 28 to take down copies of the controversial anti-Islamic film, there are still copies available in Google’s system.
According to the motion, “As of this morning, at 7:55 a.m. EST, a version of Innocence of Muslims that includes Ms. Garcia’s performance is still available on Google’s Worldwide Platform and also viewable in Egypt, the nation in which the fatwa was issued for Ms. Garcia’s execution. All a viewer needs to do to view a copy of the video that contains the infringing material from any computer in the world and within YouTube’s global platform — and therefore is governed by the takedown order — is to change his or her settings to any country platform, such as ‘Egypt.’ ”
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In February, 9th Circuit Chief Judge Alex Kozinski authored an opinion that reversed a lower court and determined that Garcia had a viable copyright claim in her own performance within the film. The appeals judge seemed to be swayed in part by Garcia’s plight. “Her unwitting and unwilling inclusion in Innocence of Muslims led to serious threats against her life,” the judge wrote. “It’s disappointing, though perhaps not surprising, that Garcia needed to sue in order to protect herself and her rights.”
Since then, however, Google has argued that the decision would create “chaos” and in seeking a rehearing en banc at the 9th Circuit, the service provider has gathered amicus support from big technology companies (Facebook, Twitter, etc.), big media companies (New York Times, Los Angeles Times, etc.) and others.
A rehearing might eventually come, but for now, Google is under strict orders to remove the video. The web giant was at least successful in getting the appeals court to modify the order by only having to remove copies containing Garcia’s performance.
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Since then, Garcia’s lawyer says that she has been repeatedly pointing out to Google ways in which the web giant is allegedly in contempt. It’s said that Google has fallen far short of removing copies and preventing new uploads.
“Notwithstanding its vast technical resources and standing as one of the largest and most sophisticated Internet companies in the world, Google and its army of lawyers have taken the position that Google is somehow incapable of complying with the order, that it is ‘deploying every resource’ to comply, and that Ms. Garcia — who has virtually no resources — bears the burden of advising Google of each and every individual URL that remains on Google’s platform in defiance of the takedown order.”
The actress leaves it to the appeals court’s discretion to figure out a proper penalty, but slyly suggests a contempt penalty of $150,000 per violation might be in order. Additionally, the emergency order raises the specter of a bond equal to the statutory maximum for each of the 852 channels identified in her initial takedown notices. According to our napkin math, that adds up to nearly $128 million.
“This Court should not allow Google to continue to flagrantly defy its order without some corresponding consequences,” says the motion. “As is clear from Google’s near-total disregard of the order and its ridiculing of the Court’s authority, Google is thumbing its nose at the Court and making a mockery of our judicial system in an apparent attempt to encourage the public to blame and harass Ms. Garcia and to continue to use the infringing content to generate YouTube revenues from traffic directed through the 852 URLs that have illegally posted the content.”
Google hasn’t replied yet to a request for comment.
UPDATED: On March 31, the 9th Circuit denied the contempt motion without comment.
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