An actress in an anti-Islam movie trailer has filed for a contempt of court order on Google for its alleged 'near-total disregard' of an appeals court's order asking it to take down copies of the video from YouTube.
The U.S. Court of Appeals for the 9th Circuit had earlier ruled in a split decision that Google should take down and prevent new uploads of the trailer. In an amended decision, it did not preclude the posting or display of any version that does not include Garcia's performance.
Garcia has claimed she holds the copyright for her performance in the trailer "Innocence of Muslims," which sparked of protests and violence in many countries in 2012.
In a filing Tuesday, Garcia's lawyer stated that a version of the trailer that includes her performance was still available in the morning on Google's worldwide platform and also viewable in Egypt by tweaking the settings of the global platform to settings for a country.
An Islamic religious ruling called fatwa is said to have been issued in Egypt for Garcia's execution. The filing claimed that the availability of the video from any computer in the world on YouTube's global platform was covered by the court's order.
In her previous takedown notices in 2012, Garcia is said to have included a list of 852 YouTube channels and URLs (uniform resource locators) that contained the infringing material. "For Google, it is a pedestrian, technical exercise to take down those URLs, to hire an intern to just search for 'Innocence of Muslims'...," counsel M. Cris Armenta wrote in the filing.
Google has violated the court's order and continued to profit illegally from traffic to the infringing material on YouTube on several different channels, according to the filing. Armenta described the maximum penalty of US$150,000 per channel as the "only fair measure of the contempt," and asked that Google be asked to post a bond for the amount for each of the 852 cited YouTube channels.
The Internet giant has temporarily disabled only a few copies of the video that allegedly contain infringing content and put in their place what the filing described as "a snide message," that states: "This video is no longer available due to a copyright claim by an actress over her 5-second appearance in the video. A U.S. court has ordered Google to remove the video. We strongly disagree with this copyright ruling and will fight it."
Garcia claims that the YouTube video included a performance by her for another movie that wasn't released, and was dubbed over to include offensive remarks about the Prophet Muhammad.
Google has claimed that an acting performance like Garcia's cannot be copyrighted and that the Copyright Act makes a distinction between a copyrightable work and its performance. It had asked for a stay of the appeals court order, as Google, YouTube, and the public would suffer irreparable harm to their First Amendment and other constitutional freedoms if the company was not immediately granted a stay on the order. The order was not stayed, but only amended.
The company could not be immediately reached for comment on the contempt filing.
Rights groups have also criticized the appeals court decision, particularly its remark that the First Amendment to the U.S. Constitution does not protect copyright infringement. As the Supreme Court has observed repeatedly, injunctions that shut down speech are particularly disfavored, the Electronic Frontier Foundation wrote in a post after the court ordered Google to take down the video.
Google is also concerned that a precedent may be set by the order so that people appearing in amateur videos without written agreements "will now have independent authority to contact YouTube and demand their removal."
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