IP Law Daily, COPYRIGHT—N.D. Cal. Another bid for class certification of a copyright claims goes down the ‘Tube’, (May 24, 2023)

By Matthew Hersh, J.D.

Video hosting giant YouTube fends off the claims of a prominent musical composer.

A Grammy-winning musician and jazz composer was not entitled to class certification of her copyright infringement and DMCA claims against YouTube, the federal court for San Francisco has held. The court, in denying the class certification motion, emphasized that “a flurry of factual and legal disputes” involving the claims of the composer and her co-plaintiffs would make it impractical for the claims to proceed as a class (Schneider v. YouTube, LLC, May 22, 2023, Donato, J.).

The lawsuit has a decidedly complicated history, but the court summarized it for purposes of this opinion as follows. A series of plaintiffs, among them prominent musician and composer Maria Schneider as well as corporate entities Uniglobe Entertainment, AST Publishing, and Pirate Monitor, brought a putative class action lawsuit against YouTube for a wide range of claims under the Copyright Act and the Digital Millennium Copyright Act, or DMCA. The complaint, which tracks many of the allegations made against YouTube in other lawsuits, largely arises out of the contention that YouTube is a “known hotbed of copyright piracy but denies most copyright owners access to its premier anti-piracy tool, known as Content ID.” The complaint also asserts that YouTube distributed works without permission with copyright management information, or CMI, removed.

But “a number of developments have changed the litigation terrain,” the court noted, since the filing of the complaint. According to the court, discovery eventually revealed that Pirate Monitor, a British Virgin Islands company, had apparently been responsible for uploading the very clips that formed the basis of its lawsuit, “and then for misusing the DMCA process to request the removal of those clips.” Pirate Monitor dismissed its claims against YouTube, but has remained in the lawsuit as a counter-defendant.

Several other disputes also arose, the court noted, prior to the motion at hand. One question was whether the composer’s publishing company had given a license to YouTube for the works in question (and relatedly, whether she had authorized her publishing company to do so). In January, the court denied YouTube’s summary judgment motion on that question, leaving it to a jury. Many other issues also arose, including YouTube’s request to dismiss certain of the composer’s claims on statute of limitations grounds as well as all of her direct infringement claims based on her license with the hosting service (the court granted each, in the same order as above). The claims of the corporate plaintiffs also involved several knotty factual questions as well, the court noted.

The composer and her co-plaintiffs moved for class certification, leading to this opinion.

Class certification. The court easily denied class certification. The composer and her co-plaintiffs asked to certify four classes: a class of persons with US-registered works; a class of persons with foreign works; a class of persons owning copyrights in sound recordings that had been assigned an International Standard Recording Code, or ISRC; and a class of persons who had owned copyrights in certain works that had been assigned a so-called “Clip Filename” by YouTube. None of the proposed classes met muster, the court found.

The registered works and foreign works classes failed, the court found, because individualized questions, rather than common questions, would predominate. The most important individualized question, the court observed, was whether the class plaintiffs could show ownership of the works in question. The putative class members argued that their multiple successful takedown notices to YouTube were sufficient to do so because they represented a finding by YouTube of ownership. Not so, said the court. “Overall,” the court noted, “[the] record demonstrates that YouTube ‘vets’ takedown notices to ensure that they comply with the DMCA’s procedural requirements, but does not make a substantive determination of copyright ownership, infringement, or defenses.” Leaving that issue aside, the court noted, YouTube has also raised “a flurry of factual and legal disputes” about whether the various putative class plaintiffs had granted licenses to the hosting giant in one form or another. Such “individual issues of licenses in themselves,” the court noted, were enough to deny class certification.

Certification of the other two classes was “equally unavailing,” the court held. Again, the putative class plaintiffs faced multiple hurdles. For one, the putative plaintiffs in these classes also would have to show ownership of the works at issue with “common evidence”—and they had failed to do that, the court found. Moreover, these plaintiffs brought claims for stripping of CMI under the DMCA—but those claims required specific proof as to each one. Most importantly, the court noted, circuit law required a plaintiff to prove that the defendant possessed “the mental state of knowing, or having a reasonable basis to know, that his actions will induce, enable, facilitate, or conceal infringement.” Thus, the court noted, “a generic assertion that a general possibility of infringement exists because CMI was removed won’t wash.” The factual showing was just too disaggregated, the court concluded, to be litigated on behalf of a class.

The Case is No. 20-cv-04423-JD.

Attorneys: George Andrew Zelcs (Korein Tillery LLC) for Maria Schneider. Anna Porto (Keker, Van Nest & Peters LLP) for YouTube, LLC.

Companies: YouTube, LLC

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