Class Certification Denied Over Rightsowners’ Demands for Content ID Access–Schneider v. YouTube
The court summarizes the case: “plaintiffs allege that YouTube has violated the copyright laws by withholding broad access to Content ID….Plaintiffs also allege that YouTube automatically strips metadata out of uploaded videos, including copyright management information (CMI), which makes it harder to catch infringing conduct.” It’s hard to believe this case wasn’t tossed out immediately. Instead, it survived summary judgment and has proceeded to a class certification determination. The court denies certification. Will that FINALLY put this case out of its misery?
Commonality
Rather than run through the standard certification elements, the court gets right to the point: “Plaintiffs face overwhelming problems with commonality and predominance that in themselves bar certification.” The court explains:
all of the proposed classes may be evaluated for Rule 23 purposes on the threshold question of whether plaintiffs can demonstrate copyright ownership on a classwide basis, or whether issues of ownership and licenses will entail individualized proof that precludes certification
The plaintiffs claimed that the DMCA takedown notices submitted to YouTube would provide this evidence. The court disagrees:
the takedown of content in response to a DMCA notice is miles away from substantive proof of copyright ownership or infringement….the DMCA does not contemplate that a takedown of content is a substantive determination of copyright ownership or infringement…
YouTube “vets” takedown notices to ensure that they comply with the DMCA’s procedural requirements, but does not make a substantive determination of copyright ownership, infringement, or defenses.
This is an obvious but crucial point. Takedown notices are the senders’ unrebutted claims. Services routinely honor those claims, true or not, because the legal deck is stacked in favor of the senders, not because the notices have merit. This is one of the DMCA’s misdesigned features. For example, when courts expect an Internet access provider to terminate Internet access to a subscriber who has been targeted by multiple takedown notices, there is a mismatch between the evidence (the rightsowners’ unconfirmed assertions) and the remedy (deprivation of an essential utility).
The court engages in a rare discussion about the “penalty of perjury” language in 512(c)(3): “It is true that a takedown notice must be made under penalty of perjury, but that does not make it more than an allegation.” I am not aware of any perjury prosecutions due to bogus takedown notices, nor do I expect to see any. I believe Congress intended the perjury standard to be an important buttress against rightsowners’ temptation to overclaim their rights, but without any resources towards enforcement, it’s proven irrelevant in practice. Thus, next time you see a statute says that a benefited party can submit a notice to another party under “penalty of perjury” (I saw that language in the draft JCPA pending in the California legislature just this week), rather than actually assigning enforcement resources to police misconduct, the DMCA experience now proves that the drafters don’t give a damn whether the notice sender tells the truth or not.
Predominance. The court says: “whether YouTube has a license for a particular work will be a matter of intense inquiry at trial.” I sense the court was overwhelmed by the complexity of music licensing, where there are layers upon layers of agreements over the initial ownership of the work, subsequent ownership transfers, distribution licenses, designations of enforcement agents, and voluntary uploads of the works by one or more people in the chain. The opinion explains how the named plaintiff Schneider didn’t understand her own chain of ownership. If she can’t figure out who is in charge of her rights, how is YouTube supposed to figure it out?
For these reasons, I remain skeptical of all class action lawsuits by copyright owners. This is on top of the necessarily individualized considerations like fair use.
UPDATE: In the wake of this ruling, Schneider abandoned her individual case right before trial.
Case citation: Schneider v. YouTube LLC, 2023 WL 3605981 (N.D. Cal. May 22, 2023)