Schneider v. YouTube, LLC

Background

Named plaintiffs Maria Schneider, Uniglobe Entertainment, and AST Publishing sought certification of four classes under Federal Rule of Civil Procedure 23(b)(3), or alternatively an issues class under Rule 23(c)(4). The proposed classes covered copyright owners whose works were removed after repeated takedown notices, certain foreign works, digital sound recordings identified by International Standard Recording Codes, and works whose clip-filename information was associated with copyright information that was removed or altered.

The plaintiffs’ case alleges that YouTube withheld broad access to Content ID, its digital fingerprinting and copyright-monitoring tool, from many copyright owners while allowing selected owners to use it. They alleged direct, contributory, and vicarious copyright infringement, as well as violations of Section 1202(b) of the Digital Millennium Copyright Act based on the removal or distribution of works with removed copyright management information.

The court noted that its earlier summary-judgment order left factual disputes concerning licenses and ownership. Those disputes included whether a chain of agreements authorized a license covering Schneider’s musical compositions, whether Schneider knew about or approved those arrangements, and whether YouTube’s Terms of Service licensed uses of works uploaded by Schneider or her agents. The record also showed individualized ownership, licensing, and upload issues involving Uniglobe and AST.

Rule 23 standards

For a Rule 23(b)(3) class, plaintiffs had to prove the four Rule 23(a) requirements—numerosity, commonality, typicality, and adequacy—and show that common legal or factual questions predominated over individual questions and that a class action was the superior method of resolving the dispute. The court emphasized that class certification is not a substitute for summary judgment or a trial on the merits.

Registered Works and Foreign Works classes

The court denied certification of the Registered Works and Foreign Works classes because plaintiffs did not show that ownership, infringement, and defenses could be proved with common evidence. Under copyright law, direct infringement requires proof of ownership of a valid copyright and copying of original elements. Contributory and vicarious infringement claims also require proof of an underlying direct infringement, along with additional individualized facts.

The plaintiffs argued that successful Digital Millennium Copyright Act takedown notices would establish ownership, registration, infringement, and the absence of defenses. The court rejected that approach. It explained that a takedown is part of the statute’s procedures for preserving an online service provider’s safe-harbor protection and indicates only an allegation of infringement. It is not a substantive decision about copyright ownership, infringement, or defenses. The court also found that YouTube’s largely automated review process generally checked whether notices met statutory requirements rather than adjudicating the underlying copyright disputes.

The court further concluded that individual licensing questions would predominate. Whether YouTube had a valid license for a particular work could depend on the claimant’s contracts, ownership history, permissions, uploads, and other facts. The named plaintiffs’ own records illustrated the complexity of those inquiries. Because plaintiffs had not shown that common questions were more important than the individual questions, the two infringement classes could not be certified.

ISRC and CLFN classes

The court also denied certification of the ISRC and CLFN classes, which were based on Section 1202(b) of the Digital Millennium Copyright Act. Those claims require proof that copyright management information was removed or altered without authority and that the defendant acted knowing, or having reasonable grounds to know, that the conduct would induce, enable, facilitate, or conceal infringement.

The court held that these classes faced the same unresolved ownership problem because plaintiffs had not shown how ownership could be established with common evidence. The court also found that the statute’s knowledge requirement, sometimes called scienter, would require individualized proof. Each claimant would need evidence connecting the removal or alteration of copyright information to an identifiable infringement or a likelihood of infringement. Plaintiffs had not shown that those issues could be resolved on a classwide basis.

The court separately held that Schneider was not a typical or adequate representative for the proposed ISRC class. That class covered owners of copyrights in digital sound recordings, while Schneider’s remaining works-in-suit were musical compositions rather than sound recordings. The two sound recordings she had initially identified were no longer part of the remaining claims after the earlier summary-judgment proceedings.

Other Rule 23 requirements

The court did not find it necessary to fully analyze every Rule 23 factor after concluding that commonality and predominance were lacking. It observed, however, that numerosity was plausible but not firmly established, that typicality was questionable because each work would require individualized proof, and that adequacy was not otherwise disputed except as it related to Schneider and the ISRC class.

Issues class

The court denied plaintiffs’ alternative request for an issues class under Rule 23(c)(4). Plaintiffs had not explained why isolating particular issues would advance the case as a whole, especially given the individualized ownership, licensing, infringement, and scienter questions that defeated certification under Rule 23(b)(3).

Expert-exclusion motion and disposition

YouTube asked the court to exclude the opinions of plaintiffs’ proposed experts, Dr. Charles Cowan and Dr. Hal Singer, under Federal Rule of Evidence 702 and the standards governing expert testimony. The court did not rely on either expert’s opinions in deciding class certification. It therefore terminated the motion to strike without prejudice to renewal as circumstances might warrant.

The court denied plaintiffs’ requests for certification of a class under Rule 23(b)(3) and for an issues class under Rule 23(c)(4).