Huge population of YouTube copyright owners denied class action status

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Class action against YouTube would create "Frankenstein monster," judge says.

The same judge who handed Viacom another defeat in its copyright infringement lawsuit against YouTube last month has denied class-action status to a huge population of video copyright owners whose works were posted on YouTube without their permission.

In a case running parallel to the infamous Viacom v. YouTube suit the English Premier League, French Tennis Federation, and various music publishers sued the Google-owned YouTube in 2007 "on behalf of themselves and all others similarly situated," and in 2010 formally asked to be certified as a class. The proposed class would contain people or entities whose copyrighted work was posted on YouTube on or after April 15, 2005 without their permission.

To be eligible for the class victims of infringement must fall into one of two subclasses. One subclass would include victims of repeat infringers such as people who asked YouTube to take videos down but said videos either remained on the site or were taken down and then posted again. A second subclass would include just music publishers who were victims of copyright infringement on YouTube when the service "knew or should have known" about the infringement because of a notification from the copyright holder, "or because otherwise identified, tracked or monitored it, or could have identified it, including through tools offered to owners of sound recordings of musical compositions."

"A music publisher subclass is appropriate because of the prevalence of unlicensed copyrighted music on YouTube and defendants' knowing disregard for the rights of many music publishers," the plaintiffs said.

In a ruling yesterday (PDF) Judge Louis Stanton of US District Court in New York ripped these arguments to shreds. Stanton wrote that granting class action status to any copyright holder infringed by YouTube users would create a "Frankenstein monster posing as a class action." (Stanton borrowed the Frankenstein monster phrasing from a judge who made a similar ruling in a case involving stock traders 45 years ago.)

Each copyright case is unique, just like copyrights themselves

Stanton explained that granting class action status to such a large group of copyright holders would make the case unmanageable and that each instance of infringement is unique, making it inappropriate to treat them all as part of the same class.

"Plaintiffs offer no explanation of how the worldwide members of this proposed class are to be identified, how they are to prove copyright ownership by themselves or by their authorized agent, or how they will establish that defendants became aware of the specific video clips which allegedly infringed each of the potentially tens of thousands of musical compositions incorporated into specific videos," Stanton wrote. "Unless an exception applies, the Digital Millennium Copyright Act requires that YouTube have legal knowledge or awareness of the specific infringement, to be liable for it. Defendant YouTube does not generate infringing material: it offers a website on which others post video clips, some of which infringe material in copyrighted works."

Stanton went on to write that copyright claims are generally poor candidates for class action treatment because they have only superficial similarities. Beyond common traits like proving ownership of a copyright and that YouTube failed to remove a copyrighted work from the website, each case "must be resolved upon facts which are particular to that specific claim of infringement," he wrote.

Proving that YouTube willfully disregarded copyright requires individualized evidence that "a copyright holder gave notices containing sufficient information to permit the service provider to identify and locate the infringing material so that it would be taken down." The claims of any one plaintiff aren't typical of the claims of an entire class because "y their very nature, copyrightable works of art are each unique, and what infringes one work will probably have no effect upon another." Each case must deal with questions of "title, assignment, waiver and fair use" that are better left to individual litigations.

"Thus, accumulation of all the copyright claims, and claimants into one action will not simplify or unify the process of their resolution, but multiply its difficulties over the normal one-by-one adjudications of copyright cases," Stanton wrote.

Economic need also can't justify class action status because "the availability of statutory damages is designed to give litigation value to each individual case."

Besides class action status being inappropriate, Stanton noted that he has already dealt with the issues raised by the copyright holders in his ruling in favor of YouTube in the Viacom case. "While Viacom claimed YouTube knew about specific infringing videos and failed to remove them, Viacom was unable to point to any specific examples of clips YouTube failed to remove despite knowing they were infringing," we wrote in describing that ruling.

The case involving the English Premier League and music publishers may not be over, though.

"Charles Sims, a lawyer for the plaintiffs at the law firm Proskauer Rose, said his clients were 'going to think about their options,' including asking the court for permission to appeal," Reuters reported yesterday.

The Premier League was originally joined by the National Music Publishers' Association in suing YouTube although that group settled with YouTube in 2011, Reuters noted. Plaintiffs still include music publishers such as Bourne Co, Cal IV Entertainment, Rodgers & Hammerstein Organization, Edward B. Marks Music Company, Beinstock Publishing Company, Alley Music Corporation, X-Ray Dog Music, Music Force Media Group, and Sin-Drome Records.

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