Recent YouTube ruling underscores obstacles in combining numerous copyright infringement claims

July 18, 2013

A visitor is seen at the You Tube stand during the annual MIPCOM television programme market in Cannes(Editor’s note: this article previously appeared in the June 2013 edition of the Corporate Counsel Connect e-newsletter)

On April 13, 2013, YouTube and its parent Google were awarded summary judgment against a host of copyright holders, including Viacom, suing for infringement.

The ruling, the latest in a long series of court battles that began in 2007, found that since there was no evidence to support Viacom’s assertion that YouTube and Google had specific knowledge of any infringing material (that wasn’t immediately removed), summary judgment must be awarded to Google and YouTube.

The ruling highlights the difficulty in litigating copyright infringement en masse – that is, suing for infringement over a wide array of different copyright-protected works.

Viacom and its co-plaintiffs were unable to defeat YouTube’s summary judgment motion because, in large part, “Viacom…failed to come forward with evidence establishing YouTube’s knowledge of specific [allegedly infringing video] clips-in-suit.”

Such a showing would be required for Viacom to defeat YouTube’s “safe harbor” affirmative defense under the Digital Millennium Copyright Right Act (DMCA), which insulates online service providers such as YouTube from monetary, injunctive, or other equitable relief for copyright infringement as long as the providers do not have knowledge of the specific instances of infringement.

As one could imagine, under this standard, it becomes quite difficult to sue a single service provider for the infringement of numerous (in Viacom’s case, many thousands) different protected works.  On a practical level, having to demonstrate knowledge of each specific instance of copyright infringement makes such litigation all but impossible.

Under a month later, the same judge (Louis L. Stanton) in the same court issued another ruling in a separate case with the same defendants (YouTube and Google).  As with Viacom, this ruling highlights the difficulty in litigating copyright infringement en masse: Football Association Premier League Limited v. YouTube.

Football Association dealt with whether to certify a proposed class action copyright infringement lawsuit against Google and YouTube.

The suit was brought by another group of copyright holders who brought suit against YouTube for copyright infringement over videos available on the site without the copyright owners’ permission.

The plaintiffs sought class action certification on behalf of, as the court put it,

every person and entity in the world who own infringed copyrighted works, who have or will register them with the U.S. Copyright Office as required, whose works fall into either of two categories:

(1)    they were the subject of prior infringement which was blocked by YouTube after notice, but suffered additional infringement through subsequent uploads (the “repeat infringement class”), or

(2)    are musical compositions which defendants tracked, monetized or identified and allowed to be used without proper authorization (the “music publisher class”).

According to the plaintiffs, there are “at least thousands of class members” in the first category, and hundreds in the second.

The court refused to certify the class, finding that “the facts which must be established to determine infringement are peculiar to each infringement, and are not ‘typical of the claims’ of the class,” as required by the Federal Rules of Civil Procedure.

The court further explained that certifying the class “would compress into one mammoth proceeding a universe of individual claims, each with its particular facts, issues and (in many cases foreign) law, much better handled in separate cases where each can receive individual attention.”

In other words, the need for facts of individual instances of infringement stopped another such lawsuit against YouTube.

If these cases are of any indication, the law doesn’t look favorably on combining numerous claims of copyright infringement into a single lawsuit.

True, both rulings were made by the same judge, but the law was applied reasonably well in both cases.

The problem for copyright holders, though, is that the number of instances of alleged infringement can get very high, such that it becomes exceedingly tedious (and expensive) to file claims separately.

However, the law (and the DMCA in particular) is structured as such to disfavor aggregated infringement suits, and the courts have thus far espoused the same attitude.

Whether this changes remains to be seen, but, as long as the statutory law remains as it is, it’s unlikely that the courts will deviate.