Mixed Ruling on Damages in Premier League v. YouTube

By Eric Goldman

The Football Association Premier League Ltd. v. YouTube, Inc., 07 Civ. 3592 (S.D.N.Y. July 3, 2009)

This is a ruling about potential damages in one of the copyright infringement lawsuits against YouTube. It’s a pretty technical ruling interpreting some arcane aspects of copyright law, including the “live broadcast exception” in 17 USC 411(c) (which until a year ago was 411(b)). I’ll confess that I had never given any thought to the 411(c) exception, and I don’t even know who to call who is guaranteed to have expertise in it. (When in doubt, I always take my tough copyright questions to my colleague Tyler Ochoa). And like you, my eyes glaze over when I see “Berne” and “TRIPs” in a legal opinion.

The substantive rulings in the case can be understood even if 411(c), Berne and TRIPs all go over our collective heads. The court says:

1) Unregistered foreign copyrights are not eligible for statutory damages…

2) …except for some broadcasts of live events if the copyright owner complies with some statutory formalities, including a requirement that the copyright owner send what is effectively a pre-event prospective “take-down” notice.

3) Punitive damages aren’t available in copyright claims.

[Note: the ruling only addressed foreign copyrights, so potential damages on domestic copyrights are unaffected by this ruling. However, domestic works should follow an identical formula.]

#3 is not news; “no punitive damages” has been well-accepted copyright doctrine for as long as I can remember. #1 was perhaps a little more contestable as applied to foreign works but was also pretty well-accepted. #2 is new ground for me and probably for lots of other copyright lawyers who don’t normally deal with copyrights in live events, but the result is fairly intuitive from a fresh reading of the statute. So although I’m not sure how often the precise issues have come up, overall this ruling seemed to be a fair and straightforward reading of the statute.

It’s less straightforward declaring who “won” this ruling. Ignoring the claim for punitive damages, an argument which struck me as never having a chance in the first place, the ruling is a mixed bag for the parties–YouTube won #1 and the plaintiffs won #2. As a putative class action, though, #1 seems more important. Considering the overall class of copyrighted works potentially eligible for coverage under the class action, the court has said that some of those works are now eligible only for actual damages. My guess is that actual damages are less valuable than statutory damages for those works. The plaintiffs may be to show actual damages for some infringing YouTube clips, such as if the plaintiffs can establish a bona fide market rate for licensing short clips (a meaningful possibility in some cases). However, I think most works will have zero actual damages from YouTube infringements. If so, this ruling implicitly knocks most foreign unregistered copyrighted works out of the lawsuit.

YouTube still faces potential statutory damages for foreign live broadcasts that complied with the requisite formalities. The ruling cites a declaration by plaintiffs that there are at least 340 such works. While YouTube would have preferred to knock out statutory damages for all unregistered foreign works, I think this ruling should effectively reduce the parties’ overall dollar value assessment of the case’s worth. Unfortunately, I doubt the ruling reduces that dollar value enough to enable meaningful settlement discussions.

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