Last week, we wrote that actress Cindy Lee Garcia had filed a motion for contempt against Google. If you don’t recall, a few weeks ago, Garcia had (astoundingly) won her appeal to have the Innocence of Muslims 13-minute trailer removed from YouTube based on Judge Alex Kozinski’s extremely novel interpretation of copyright law, in which the actress who is in 5 seconds of the “film” was given a copyright interest in her scene (something that even the Copyright Office has rejected).

The filing for contempt was bizarre on many levels, mainly stemming from Judge Kozinski’s bizarre order in the first place, which clearly went beyond the bounds of what copyright law says. However, Garcia and her lawyer, Chris Armenta, sought to portray a Google that was consistently thumbing its nose at the ruling, leaving many copies of the video online, and barely doing anything to take them down. At one point, in the contempt motion, Armenta suggested that Google really ought to just “hire an intern” to search for the movie and keep on blocking new copies. In response to the filing, the 9th Circuit gave Google 72 hours to respond (and a limit of 2,500 words). Over the weekend Google filed its response and it’s fairly incredible in its own right, in that you can feel the exasperation of Google’s lawyers in having to respond to what they believe is an almost entirely bogus filing from Garcia.

We will not mince words: These allegations are false. To Google’s knowledge, there are no copies of “Innocence of Muslims” available on YouTube, nor were there when Garcia filed her motion. And Google has worked diligently to comply with the Court’s injunction. It has blocked every copy of the video that it has found through automated and manual searches.

As for the claim that it should just “hire an intern” Google points out that it has already done a hell of a lot more than that with more than 20 dedicated employees basically focused on the issue of keeping this movie off YouTube. The companies notes that it can’t just use Google’s famed (or infamous) ContentID program, because that’s based on actual copyright law, not Kozinski’s wacky interpretation of copyright law, and thus would do things like alert users and allow them to file counternotices. But since that’s not allowed under the court order, it has had to manually adjust its process. And that has taken much more than “an intern.”

And it worked under tremendous time pressure to develop a new method—one that combines automated screening technology and manual review—to identify and block new uploads. YouTube was forced to take that unprecedented, technically complicated step because removal through its existing automated system would trigger a chain of events inconsistent with the Court’s orders.

This work is substantial and ongoing, requiring significant commitment by the companies. At least 20 Google and YouTube employees have worked to ensure compliance, and they have collectively dedicated hundreds of hours to the task.

The company notes that for all of Garcia’s talk of “flagrant” defiance of the order, she names just one copy of the video that she was able to find on YouTube, and Google notes that, as part of the ongoing process it described above, that copy of the video (which had a grand total of 35 views) was actually removed from YouTube before Garcia even filed the contempt motion. Google even gives some details about how its automated systems scan through all of the videos being uploaded to find these things.

YouTube’s search algorithm gives highest priority to videos with a significant number of views… That means that some videos with minimal views that were uploaded before the Court’s injunction, and not found through manual searches, may be in the scanning queue before they can be identified.

That appears to be the case with the lone copy Garcia identifies in her motion…. That copy had approximately 35 total views, and YouTube’s automated system queued it for review behind videos with more views…. The system identified the video on the same day Garcia located it— indeed, before she brought it to Google’s attention…. And YouTube blocked it before Garcia filed her motion.

Once again, the frustration at Garcia’s flippant suggestion that it was easy to block this video comes through in the filing:

Garcia suggests that making “Innocence of Muslims” disappear is a “pedestrian, technical exercise” that can be accomplished instantaneously…. But that suggestion reflects a deep lack of technical understanding and vastly underestimates the burdens involved in complying with a sweeping take-down, stay-down order on dynamic platforms.

As for Garcia’s argument that the big bad Google is trying to dump the entire burden of finding new copies of the video on poor little Cindy Lee Garcia, Google feels quite differently:

The Court will search Garcia’s email attachments in vain for proof of that assertion, because Garcia made it up. Google has never placed the burden on Garcia, but instead has told her— accurately—that “Google is taking this seriously and is working quite hard to comply with the Ninth Circuit’s order.” …. Google also offered to explain to Garcia’s counsel precisely what Google was doing to comply…. Garcia’s counsel did not take Google up on that offer. Instead, after dropping the issue of YouTube’s compliance for over two weeks, Garcia’s counsel suddenly announced she would file a contempt motion within 30 minutes…. In response, Google’s counsel urged Garcia’s counsel to identify any copies that had been the subject of notifications and that remained on YouTube so that they could be addressed…. Garcia’s counsel declined to identify any, but filed her motion anyway.

There’s also this little tidbit, in a footnote, after pointing out that nowhere does Garcia provide a list of URLs that Google ignored. Instead, they name the one which, as described above, Google had already found and removed, and then here and there suggest there are others, even though those were all removed long ago. Google points out that Garcia’s lawyers are clearly trying to mislead the court by not showing the context, nor providing a detailed list (which would actually show Google had removed all those copies), using quite a quote:

Notably, these URLs are scattered through her declarations; her motion neither mentions nor provides context for them. That is another reason to deny the motion. “ ‘Judges are not like pigs, hunting for truffles buried in the briefs.’ ” Independent Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).

Google also takes issue with Garcia’s claim that Google failed to “take down” the videos (as Kozinski’s order demands) but rather just disabled access to the videos. As we pointed out in our post, and Google points out here, the law actually says something different. But, more importantly, Google points out that fully deleting those videos would then create other legal problems:

Garcia complains about YouTube’s choice to block copies of “Innocence of Muslims,” rather than delete them altogether…. But the Court’s injunction does not require YouTube to “delete” copies. Instead, it directs YouTube to “take down” the copies. Feb. 28 Order at 2. And the phrase “tak[e] down” refers to a platform’s “disabling of access to, or removal of” allegedly infringing content. 17 U.S.C. § 512(g)(1) (emphasis added). YouTube has done just that. It has disabled worldwide access to “Innocence of Muslims”; no one can see the blocked copies…. Requiring deletion would turn the preliminary injunction into a de facto permanent injunction by leaving YouTube unable to restore the videos if it ultimately prevails…. The Court’s orders sensibly do not go so far.

Then there was the argument that Garcia made that via Google’s search engine, you could still be linked to copies of the video elsewhere. As Google points out, the injunction issued by Garcia only spoke about copies of the video on Google’s websites. And, again, the exasperation shines through as Google points out that Garcia’s main complaint seems to be that Google has not made the video disappear across the internet — but, the company notes, Google is not the internet.

Finally, Garcia complains that Google has not removed from its search engine links to third-party websites containing copies of the film…. But the Court’s injunction requires Google and YouTube to remove only “copies of” the video, not links to third-party sites that may lead to it…. And it requires Google to remove such copies only from “platforms under Google’s control,” not third-party websites….

Garcia’s fundamental complaint appears to be that “Innocence of Muslims” is still on the Internet. But Google and YouTube do not operate the Internet.

There’s also a discussion of how insane Garcia’s demand for money is, as she calculates how much she wants (incorrectly) based on copyright’s statutory damages number, but damages for contempt are limited to actual damages, not statutory damages from a different law. Furthermore, even if it was damages for copyright infringement, as we have pointed out plenty of times, the statutory damages are limited to infringement of a single work, not per copy, so at most Garcia would entitled to $150,000 — not $150,000 multiplied by every copy of Innocence of Muslims that ever was on Google. They also note that it’s particularly ridiculous to argue to multiply the statutory damages by copies of the video (basically all of them) that Google had already taken down.

Finally, in the filing, Garcia claims that Google is keeping the video up (which it’s not) to generate ad revenue. In our own comments on the original story, the guy Garcia hired to search Google to find these videos angrily insisted that this was entirely about “Google making a conscious decision to obtain the viral worldwide exposure and ad revenue from a video that went hugely viral overnight with hundreds of copies uploaded to hundreds of YouTube channels. That is YouTube’s revenue model. It’s about money and business.” There’s just one big problem with this argument that it’s all about the revenue for Google, and Google points that out in a footnote:

Garcia says YouTube “continues to use the infringing content to generate * * * revenues[.]” …. Not so. YouTube took measures to avoid running ads against known copies of “Innocence of Muslims” in September 2012…. Garcia’s allegation that YouTube wants to keep the video up to make money is spurious.

Basically, Google manages to rip to shreds Garcia’s contempt motion — and to do so (somewhat amazingly) without also trashing Kozinski’s original order. I find it difficult to see how the Court can read these two motions and not realize that Garcia’s was completely frivolous, but considering that this is the court that found Garcia’s initially frivolous case legitimate in the first place, who knows what’s going to happen.

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