Schneider v. YouTube, LLC

Background

This pretrial order sets procedures and resolves evidentiary issues for the jury trial scheduled for June 12, 2023. The parties agreed to try six representative infringement works and six representative CMI violations. They also agreed that statutory damages would be awarded on a per-work, rather than per-infringement, basis for Schneider’s six selected works, and that damages for remaining claims could be applied proportionally. The order states that Schneider’s remaining infringement claims and CMI violations would not be tried to a jury in this trial or any later trial.

The court directed plaintiffs to file by June 9, 2023, a dismissal of AST Publishing as a party, AST’s and Uniglobe’s claims involving foreign unregistered works, and Schneider’s claims concerning CLFN metadata. The order directed the filing of those dismissals; it did not itself state that the claims were dismissed.

Expert testimony

A Daubert motion asks the court to decide whether proposed expert testimony is sufficiently reliable and useful to be presented to the jury.

• The witness Hal Singer was withdrawn by agreement.

• For Joseph Winograd, exclusion was granted for the opinions in paragraph 95 of his report and for the remainder of his opinions. The court found the opinion about YouTube’s ability to provide copyright owners with effective tools too vague and not sufficiently connected to Winograd’s expertise or specialized knowledge. The court said it could revisit the exclusion depending on technical evidence admitted at trial.

• For Paul Jessop, opinions concerning CLFN metadata and how to identify CMI in video files were withdrawn by agreement. Exclusion was granted for legal conclusions about knowledge or intent, but denied for the remainder of his opinions.

• For Francois-Xavier Nuttall, opinions about CLFN metadata were withdrawn by agreement. Exclusion of the remainder of his opinions concerning ISRCs was denied. Plaintiffs may cross-examine Nuttall about his definition of CMI and the relevance of industry practice concerning ISRCs.

• The witness Steven Peterson was withdrawn by agreement.

Plaintiffs’ motions in limine

A motion in limine is a request to decide before trial whether particular evidence may be presented.

• Motion No. 1 was withdrawn by plaintiffs.

• Motion No. 2 was denied. Plaintiffs had not shown that judicial estoppel—a rule that can prevent a party from taking an inconsistent position—applied.

• Motion No. 3 was denied. YouTube may introduce evidence about the scope of relevant licenses. The court stated that plaintiffs’ argument that certain YouTube contracts licensed only YouTube, not its users, should have been raised at summary judgment.

• Motion No. 4 was denied. YouTube may introduce evidence of an unsuccessful takedown notice submitted by Uniglobe.

• Motion No. 5 was withdrawn by plaintiffs.

• Motion No. 6 was conditionally denied pending developments at trial. YouTube may introduce evidence that a plaintiff transferred an exclusive right in a work if warranted under the federal evidence rules governing relevance and unfair prejudice.

• Motion No. 7 was granted. No evidence or testimony may be presented about the marginal cost of adding reference files to YouTube’s Content ID database because YouTube had not adequately disclosed that information during discovery.

• Motion No. 8 was denied. YouTube stipulated to certain proposed facts, but may contest the remaining facts at trial.

YouTube’s motions in limine

• Motion No. 1 was denied. Evidence of plaintiffs’ lost revenues and YouTube’s profits may be relevant to statutory damages. The court said it could consider giving the jury an instruction limiting how the evidence may be used.

• Motion No. 2 was denied. Schneider may testify generally about her opinions and experiences with Content ID, with objections addressed during trial as appropriate.

• Motion No. 3 was granted as to claims involving works identified after February 25, 2022. Plaintiffs may offer evidence of five such infringements only to show willfulness or other factors relevant to statutory damages, and they must establish an adequate foundation.

• Motion No. 4 was withdrawn by YouTube.

• Motion No. 5 was denied because it raised arguments the court had rejected at summary judgment.

• Motion No. 6 was granted. Plaintiffs may not introduce Content ID search results for their works, consistent with the parties’ agreement.

• Motion No. 7 was denied in part. Plaintiffs may introduce reasonable evidence of YouTube’s financial condition, but may not focus extensively on that issue.

• Motion No. 8 was denied. The parties may present evidence about Schneider’s contractual arrangements. However, testimony about the meaning or intent of Section 7 of the Administration Agreement between Schneider and ArtistShare Music Publishing requires advance court approval.

Trial procedures

The court set deadlines and conferences concerning jury questionnaires, proposed voir dire questions, preliminary jury instructions, and the parties’ witness lists. Each side may give the jury venire a non-argumentative mini-opening lasting no more than three minutes.

During testimony, people seated at counsel tables must remain seated and may not visibly or audibly react to the evidence. Violations could result in removal from the courtroom for the day and possibly the remainder of trial. No motions may be filed during trial without the court’s advance approval on the record; requests must be made in court rather than through an after-hours filing.

Witnesses will testify once even if both sides intend to call them. Opposing experts must testify back-to-back, and the parties were directed to plan accordingly. Judge James Donato entered the order on June 6, 2023.