Interesting not just because of the intersection of class
actions and copyright, but because neither side apparently had the incentive to
clarify matters with respect to statutory damages, thus enabling some sloppy language, though nothing that ought to make a difference to this
case.
The court began by suggesting that this case was a
“Frankenstein monster posing as a class action” (citing Eisen v. Carlisle &
Jacquelin, 391 F.2d 555, 572 (2d Cir.1968) (Judge Lumbard, dissenting from
remand)).
The putative class consists of
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: 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
are musical compositions which defendants tracked, monetized or identified and
allowed to be used without proper authorization (the “music publisher class”).
The plaintiffs claimed that there were at least thousands of
members in the repeat infringement class, and hundreds in the music publisher
class. (Let me pause here and note that
everything about statutory damages that follows would make much more sense
if the class definitions had involved works registered before the infringement began or within three months of publication;
it is hard for me to imagine that this would’ve changed the size of the class
very much except perhaps as to foreign works, since commercially significant US
works tend to be timely registered and foreign owners generally either register in timely fashion or they don't, since late registration is pointless for them. Of
course plaintiffs probably want a lot of non-US works in the class—but overall
then, it probably would’ve been to their benefit to point out that many non-US
works in the class wouldn’t be eligible for statutory damages. The idea of eligibility for statutory damages
might seem to make damages calculations easier and thus class treatment more
acceptable, but here I don’t think that adds much, given that individualized
damages calculations are often acceptable if a class is otherwise valid.)
Ahem. Okay:
plaintiffs didn’t explain how the worldwide members of the class would be
identified, how they’d prove ownership, or how they’d prove YouTube’s awareness
of infringement, which is important given YouTube’s general DMCA
protection. Given the number of clips on
YouTube, “[t]he suggestion that a class action of these dimensions can be
managed with judicial resourcefulness is flattering, but unrealistic.” (Of course, neither will individual actions
get much of anywhere, even if the individual is Viacom.)
In general, “copyright claims are poor candidates for
class-action treatment.” Though of
course the elements of infringement/secondary liability are the same across
works, the issues “must be resolved upon facts which are particular to that
single claim of infringement, and separate from all the other claims.” Aggregation therefore doesn’t simplify
dispute resolution. Plus, the economic
need to aggregate that often justifies class actions isn’t as significant
because “the availability of statutory damages is designed to give litigation
value to each individual case.”
Going through the class certification factors in Rule 23(a),
the class wasn’t just numerous, but so
numerous that joinder was impracticable.
“While one can often phrase questions of law or fact in ways that make
them ‘common’ to the class, in this case one can do that only at a level of
generality which is useless in practical application.” Common questions there might be, but common
answers couldn’t be found because of dissimilarities within the proposed class:
in particular, whether the copyright owner’s notice was sufficient to permit
YouTube to identify and take down the infringing material, along with other
defenses like fair use. Other issues:
validity and ownership of the copyright; whether the party asserting a claim is
authorized to do so; amount of damages; substantial similarity and fair
use. These were all too
individualized. “One piece of music is
unlike another, and is untouched by what infringes the other.” Under Dukes,
“the few truly common issues, which largely pertain to the defendants' conduct,
do not predominate over individual issues.”
This also meant there was no typicality. “By their very nature, copyrightable works of
art are each unique, and what infringes one work will probably have no effect
upon another.” (Even exact wholesale
copying? Those are special
snowflakes!) Each claim had individual
issues of ownership, infringement, fair use, and damages.
Nor was Rule 23(b) satisfied. A class action would be inferior because it
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.” The fear of expense was mitigated by
statutory damages, and in any event “the unique nature of each work and of its
infringement cannot be obliterated by its inclusion in a sea of other claims,
and the defendants are entitled to contest each of them.” As for the individual questions of ownership,
assignment, waiver, and fair use (or fair dealing, I presume), they’d be “better
handled in the jurisdictions (often foreign) in which they arise, rather than thousands
of miles away.”
Nor did the proposed subclasses help any. The first was the repeat infringement class,
for works that are or would be registered or didn’t need registration (i.e.,
foreign works), whose owners submitted takedown notices but suffered subsequent
uploads that could’ve been blocked by screening tools. The second was the music publisher class, for
those who owned/controlled musical works that were tracked, monetized, or
identified by YouTube, “including because YouTube identified a sound recording
of the composition using its text-based or audio-fingerprinting screening tools,”
whose works weren’t authorized.
As for the repeat infringement class, YouTube just wasn’t
obligated by §512 to screen for repeat uploads; plaintiffs were bound by the Viacom holding to that effect, as they
were parties to that appeal. That left “little
or nothing” to the repeat infringement class, who at most would still need to
litigate their individual issues.
Plaintiffs’ implication that compliance with a takedown notice was a
tacit concession of infringement ignored §512, which made clear that a takedown
was no such thing and contemplated counternotification.
And for the music publisher class, even if §512 were
overcome, there’d still be all those issues of ownership—“under the applicable
foreign law in the instances of foreign plaintiffs”—lack of authorization, fair
use, and nature and amount of damages, depending at least in part on
registration timing. “Plaintiffs say
that the burden is much simpler for this class than in the usual case, because
of the special business characteristics of the class definition, and that may
be so. But the showing must still be made, and one plaintiff's will be different
from another's.” So there was no typical
claim that could provide common answers, only a “diverse and unmanageable
aggregation of individual claims, better dealt with separately.”
Plaintiffs also sought certification of two issues: whether
defendants had the right and ability to control infringing activity on their
website and received a direct financial benefit attributable to that activity,
and whether defendants' unilateral syndication of clips to third parties was
“by reason of the storage at the direction of a user.” These were dealt with in
Viacom, and not to plaintiffs’ advantage.
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