• by Wendy Davis  @wendyndavis, March 26, 2014

Actress Cindy Lee Garcia is asking a federal appellate court to hold Google in contempt for allegedly allowing the film “Innocence of Muslims” to reappear on YouTube.

Garcia says in court papers filed Tuesday evening that Web users can still access the 13-minute clip by tinkering with their YouTube country settings. “All a viewer needs to do to view a copy of the video ... is to change his or her settings to any country platform, such as 'Egypt'," the contempt motion alleges.

She also says that Google isn't proactively filtering the clip from its site, but is instead relying on her to inform the company of URLs with the film. “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 ... 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 platforms in defiance of the takedown order.”

Garcia is asking the court to impose sanctions of $150,000 per violation.

Last month, a three-judge panel of the 9th Circuit Court of Appeals ruled 2-1 that the clip potentially infringed whatever copyright interest Garcia owns in her performance. The panel issued an injunction requiring Google to immediately take down the clip and make reasonable efforts to prevent further uploads. The panel later amended that order to allow Google to post the clip, providing Garcia's five-second appearance was excised.

That ruling was controversial for several reasons, including that it's debatable whether Garcia owns any copyright interest in the 13-minute film. The Copyright Office rejected her request for a copyright, and no court has definitively ruled that she has one. The takedown order also stirred controversy because injunctions banning content before there has been a trial are considered “prior restraints” on speech -- which are usually unconstitutional.

Google has asked the entire 9th Circuit to reconsider the case; the court currently is considering that request. The company hasn't yet addressed Garcia's contempt allegations, which makes it difficult to determine whether the company took reasonable steps to comply with the appellate panel's order, according to Santa Clara University law professor Eric Goldman.

“Google is not in contempt simply because Garcia can still find versions of the video on YouTube,” he says in an email to Online Media Daily. “Until we hear from Google about what steps it took and why they may failed, there's no way for us to know if Google failed to follow the order.”

He adds that the injunction requiring Google to take down the clip and prevent further uploads appears to conflict with the Digital Millennium Copyright Act. That law authorizes injunctions to remove material at “a particular online location” or “a particular online site on the provider’s system or network.”