ALM Properties, Inc.
Page printed from: Corporate Counsel
Select 'Print' in your browser menu to print this document.
Not Just Kings of the Web
YouTube LLC won another round in its long-running battle with copyright owners. In May, U.S. District Judge Louis Stanton in Manhattan denied class certification to plaintiffs who argued that their rights were infringed when material to which they hold the rights was posted on the YouTube website, which features user-generated video and audio.
In a 13-page order, Stanton ruled that the copyright claims against YouTube are far too individualized to be resolved on a classwide basis. Noting that the site's traffic now exceeds 1 billion daily views, the judge wrote that the "suggestion that a class action of these dimensions can be managed with judicial resourcefulness is flattering, but unrealistic."
Stanton's skepticism could not have come as a surprise to the parties. In 2010 he tossed the same claims on summary judgment, along with a parallel $1 billion claim brought by Viacom Inc., which owns the copyrights to TV shows like South Park and The Daily Show. Because YouTube complied with requests to take down infringing content, it is protected by the "safe harbor" provisions of the Digital Millennium Copyright Act, Stanton ruled at the time.
The U.S. Court of Appeals for the Second Circuit revived both the class action and the Viacom case in April 2012. The appellate court ruled that Stanton didn't properly consider whether YouTube turned a blind eye to infringing conduct on the part of its users. But a year later Stanton dismissed Viacom's case once again, and the parallel class action now seems headed for a similar fate.
The cases began with much fanfare back in 2007, when copyright owners from around the world, including American music publishers and a U.K. soccer league, banded together to sue YouTube and its parent Google Inc. One of the plaintiffs lawyers at Proskauer Rose told Law360 at the time that the case was "an answer to Google's imperialistic quest to take this infringement machine from the U.S. and into other countries. Other countries are saying no, that they're going to stop it."
But to date the firm and cocounsel Bernstein Litowitz Berger & Grossmann have failed to ground the high-flying website, which is now the third most popular site in the world. And thanks to Stanton's ruling, their prospects of collecting much in the way of statutory or punitive damages are looking bleak.
Proskauer and Bernstein Litowitz sought to represent two classes: copyright holders whose works were repeatedly infringed even after YouTube complied with a takedown notice (the so-called repeat infringement class), and music publishers whose compositions were monetized by YouTube (the "music publisher class"). Stanton refused to certify either, noting that "generally speaking, copyright claims are poor candidates for class action treatment."
The lead plaintiffs, which include the Football Association Premier League Ltd. and Bourne Co. Music Publishers, can still pursue claims against YouTube in an individual capacity. But Proskauer's Charles Sims says that he expects those individual claims to be stayed while Viacom appeals Stanton's dismissal of its claims back up to the Second Circuit. Sims declined to comment further, except to say that his clients are disappointed and reviewing their options.