YouTube Sued Again–Football Association Premier League v. YouTube

May 7, 2007 · by · in Copyright, Derivative Liability

By Eric Goldman

The Football Association Premier League Ltd v. YouTube, Inc., 1:07-cv-03582-UA (SDNY complaint filed May 4, 2007)

Hot on the heels of Viacom’s lawsuit against YouTube, two new plaintiffs are leading a separate lawsuit against YouTube for copyright infringement. This time, they are seeking class-action status, putatively bringing along a lot of long tail content producers for the ride.

This lawsuit appears to be a frontal assault on the 512(c) safe harbor scheme. The complaint acknowledges that the plaintiffs tried to send 512(c)(3) takedown notices and didn’t like the results, but then goes on to explain why sending takedown notices is ultimately futile and shouldn’t be necessary. Some of this just reads like the sour grapes of copyright owners who don’t like the economic deal Congress implicitly struck in 512(c), which puts some of the financial burden on copyright owners. I think most judges won’t find that gripe all that sympathetic. However, as I’ve said before, 512(c) is unquestionably ambiguous about whether a copyright owner must send a 512(c)(3) notice before service providers can lose 512(c)’s coverage, and this lawsuit (along with the Viacom lawsuit) create the risk that the judges will read an ambiguous statute unfavorably.

Unlike the Viacom lawsuit, I don’t think this case will settle as easily–it lacks the range of strategic opportunities that exist between Viacom and Google, and class action lawsuits are often more complicated (and expensive) to settle. Further, Google’s efforts to mollify angry copyright owners with some tools to expedite takedown processes didn’t stave off this lawsuit (the Premier League said it tried the tools and didn’t like the results), so this reduces the chance of some non-cash product change being sufficient to satisfy these plaintiffs. As a result, at this point, perhaps it’s inevitable that we will get some more court opinions on the ambiguities of 512(c) as applied to video-sharing sites.