The Football Association Premier League Limited et al v. Youtube, Inc. et al, No. 1:2007cv03582 - Document 371 (S.D.N.Y. 2013)

Court Description: OPINION AND ORDER DENYING CLASS CERTIFICATION. The motion for class certification is denied. So ordered. (Signed by Judge Louis L. Stanton on 5/15/2013). (rjm)
Download PDF
STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK u~ITED THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, BOURNE CO. (together th its Affiliate MURBO MUSIC PUBLISHING, INC.), THE MUSIC FORCE LLC, CAL IV ENTERTAINMENT LLC, NATIONAL MUSIC PUBLISHERS' ASSOCIATION, THE RODGERS & HAMMERSTEIN ORGANIZATION, EDWARD B. ~~RKS MUSIC COMPANY, FREDDY BIENSTOCK MUSIC COMPANY d/b/a BEINSTOCK PUBLISHING COMPANY, ALLEY MUSIC CORPORATION, X RAY DOG MUSIC, INC., FEDERATION FRANCAISE DE ~ENNIS, THE MUSIC FORCE MEDIA GROUP LLC, SIN DROME RECORDS, LTD., on behalf of themselves all others similarly situated, Plaintiffs, 07 Civ. 3582(LLS) -against OPINION AND ORDER DENYING CLASS CERTIFICATION YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE INC., Defendants. ---X Forty five years Court of Appeals for ago s Judge rcui t Lumbard of the called a case a ted States "Frankenstein monster pos as a class action." Eisen v. Carlisle & lin, 391 F.2d 555, 572 (Judge Lumbard dissent from remand) .1 (2d Cir. 1968) The description fits the class aspects of this case. 1 Six years later the United States Supreme Court endorsed dismissal of the class allegations, 417 U.S. 156 (1974), with a reference to Judge Lumbard's characterization of it, id. at 169. 1 putative class consists every person and the world who own inf nged copyrighted works, register u.s. them with works fall o either Copyright Office enti who have as or will required, two categories: they were in whose subject of infringement which was blocked by YouTube after notice, suffered additional "repeat infringement infringement defendants tracked, without proper Plaintiffs are subsequent musical that there Inf r Class (the are "music "at compositions in Supp. publisher least ngement Class, (Mem. served Dec. 12, 2012, p. this prove proposed copyright specific class are to ownership video potentially tens and it res be "hundreds" themsel ves specific allegedly thousands of infringement, ln the have to legal be how or they their are to authorized that defendants became aware whi cl You'I'ube class dwide members identified, of infringed musical knowledge liable 2 of the compositions ess an exception appl Millennium Copyright Act 17 U.S.C. that of Certification, undated but incorporated into specific videos. the which 20). , or how they will establi the (the class"). thousands Plaintiffs offer no explanation of how the of uploads monetized or identi ied and allowed to be used the Music Publi or authorization assert members" class"), through for or it. § 512(c) ("DMCA") awareness Viacom of Int' 1 the v. YouTube, Inc., F.3d (2d 19 infr 718 F. Cir. it YouTube offers , some of whi materi (S.D.N.Y. Defendant 2012) ng material: deo 2d 514 website inf does aff'd, 676 not e ot on whi by in copyrighted works. be secondari a 2010), post ting or copying) Thus YouTube is mai all liable for its users' uploading an infri to ng cl onto the service. An idea the from gl of the record Inc. v. YouTube est ishes scope case in in of the che this materials parallel court involved Viacom (07 Civ. be International, 2103), which site craffic on YouTube as of March 2010 " daily views, had soared to more than one bill reay with more than 24 hours of new videos uploaded to the site every minute." (676 . 2d at 518). F.3d at 28; 718 F. The suggestion that a class action of these dimensions can be with cial j resource ness is flattering, b~t istic. , copyright claims are poor candi Generally class action treatment. nature of their They have infringed by a cl ip posted on zation frore the and analyses are The similar: a copyright and the copyrighted aintiff must prove ownership work icial similarities. rements 1 s Yo~Tube by one who had no ght owner or 1 icensee to post 3 it, which not substantially si lS constitute a fair use of it, under circumstances YouTube had such knowledge or awareness of that it should have expeditious so. But that mere cIa of inf in which nging action removed it, ifies some of l must be resolved upon work and does lar to the copyright led to do issues, each of whi ts which are particular to that s infringement, and separate accumulation of all the from all copyright the other claims. claims, and claimants into one action will not simplify or unify the process of resolution, but multiply one adjudications n cases copyr availabili wnose f ir ts difficulties over the normal one-by­ copyright cases. Much class lit combine e ion costs =ustified by an economic need to lS would prevent litigation s of statutory factor lS s individual is lit ion. dimini to give lit ion value to each individual case. - Federal Rule of 1 Civil 23 prescribes prerequisites to class actions that (a) Prerequisi tes. One or more members of a class may sue or be sued as representative ies on behalf of al members only if: as the class is so numerous of all members is impractic (1 ) (3 ) of s the representat parties 11 fairly and adequately protect the interests of class. fined at s point, it of the worldwi the membe numerous, a the or claims fenses of the representative parties are typical of claims or defenses of the class i and (4 ) stated there are common to ill of , e' (2) Although questions classi joinder law may their claims ln a single be taken individual but also that legal fact as class is extremely so much so that not only their jo e action is impracticable, or action is in administration impracticable. While one can often phrase questions of law or fact in ways that make them "common U to only at a ication. level As of class, ln this generality which Supreme Court Inc. v. Dukes, 131 S. Ct. 2541, 2551 case one can do that is useless ln practical stated in Wal Mart (2011) Stores, I "What matters to class certification is not the raising of common 'questions'-even in droves-but, rather the capacity of a classwide ng to generate common answers to drive the resolution of the litigation. Dissimilarities wi proposed class are what have the ential to impede the ion of common answers.U 5 (emphasis in original) che Age (quot Nagareda, of 84 Class Certification In N.Y.U. L. Rev. 97, 131-132 (2009)) . Here to make require resolut~ons court claimed to Co which advance determine, been infringed, for whet lit each r ion wil copyrighted a copyright der gave notices containing sufficient information to permit That requires it could be taken down. analysis r defenses, lS of copyright, y aris this lit and and issues each ffer ion (including amount over-arching quest These to determine "fair use," with repetitive are validi way of of injury and and from zation of infringement damages, simil peculiar to from every ot r of it, in These one. the t ied licenses and equitable l ial facts in the ownership and of arise claimed al so dualized evidence. its licensing to and the asserting it estoppels) required service necessarily specific to the individual case. Issues nature the infringing mate provider Co identify and locate work as ty well as fair the use. each protected work a compartmented "di ss imilari ties case wi the proposed class" prevent the adjudication of claims en masse. One piece of music is unlike another, s the other. 6 and is untouched by what n brief, not re se individual is central "an issue one of the decisions of cl few in one stroke" truly common issues, factual issues do to the val 131 S. Ct. at 2551) Dukes, whi ty of each largely pertain to the fendants' conduct, do not predominate over individual issues. Nor are the cl of class. are each no ef determine are By que, t not of any plaintiff typical of ir very nature, copyrightable works of art and what infringes one work will probably have upon another. infringement "typical presents claims of icular ts which must be est The are the peculiar claims" factual to of issues each inf lished to ngement, class. Each ight of and claim owner infringement, fair use, and damages, among others. considerations treatment ed (b) are expressed af cting e in 23(b}, of Class maintained i (1) Actions. Rule 23(a) if the of class action may be is satisfied and if: A prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications th respect to individual class members would establish incompatible standards of conduct for the party opposing the class; or 7 class requisites are not) : are satisfied (which Types ety (B) udications with respect to individual class members as a practic matter, would be spositive of the interests of the other members not parties to the l dual adjudications or would substantially r or impede t lr lity to ect their interests; (2) the party oppos the class has acted or refused to act on grounds that general to the class, so that f uncti ve reI f is appropriate respect the class as a whole; or (3) court finds that the questions of law or fact common to class members predominate over any questions af ing only indivi members, and that a class action is to other lable methods for fairly efficient adj cat the controversy. matters inent to these findings include: (A) the class members' interests in individually controlli the prosecution or fense of separate act (E) extent and nature of any litigation ng controve al begun by or class members; ( C) the desirability or undesirability lit ion of concentrat ing the icular forum; and c aims the (D) the likely class action. The individual and ffi ties non~transferrable of in managing a nature of the findings necessary to determine each infringement claim (discussed above) render subdivisions (1 ) and (2) 8 inapplicable. Since, with re to subdivision members" but infe compress individual (in many into claims, cases each above, can a methods mammoth individual to action is adj ar much better receive class cation. It a unlverse of issues and proceeding its parti law, object damages. in a cting only individual facts, handled in at tent ion. individual s e As litigat is not its that concern is palliated by the availability of expense; 0 one eaCll with usual the or to foreign) cases W{lere and stions af " predominate over common questions, not super d (3) In any event, the uni nature of its infringement cannot be obliterated by its lnc sea of the other claims, f s are ion enti tIed to contest each of them. There is no irability particular ion in a single forum, lit stions of handl title, in the j rather than thousands the there are significant drawbacks. assignment, sdictions concentrat waiver ten foreign) fair use in whi are ter they arise, miles away. 2 - Plaintif s propose the certi ication of two subclasses and two "issues" classes. of them consists of all persons and 9 entities in d and their princ sentatives, scered, action, Is, subsi etc.) or will be or does publical th not nor aries, own ist re ions of the defendants aff il iates, the ass copyright which fore final registration, I has judgment in a distribuced or performed on the YouTube work for che "Repeat lnf ite Class": (a) submit co defendancs a notification of infringement pursuant co 17 U.S.C. §512 (c) (3) or its enc for a particular work, which caused defendants to remove or block infringing act ty identi ied in nocice, but as to which addicional i ringements occurred through subsequent oads that could have been identified and blocked using cext based or digit -fingerprincing (or other) screening tools used defendants. Or, 2. for the "Music Publi Class" : (a) own and/or control one or more copyrighted musical composicion(s) available on t YouTube si te, which composi tion (s) def s tracked, or rwise identifi ln any form, including because YouTube identified a sound recording of the composit us ics cext based or audio fingerprinting screening cools; and (b) musical composition was used withouc proper authorization on the YouTube site. pIs.' Notice of Mot. ac pp. 1-2. 10 chis was I 15, 200 , and ei 1. been er (a) Infringement Class The This "class U depends, proposition use of its for the val ty of its claim, on YouTube could readi own screening tools, have the i identif i ty and by location of later infringements of works whose earlier claimed infringements had removed aintiffs on a ies were to takedown notice. the appeal, Second Circuit's determination, Viacom, addressed very assertion, whi and But are the bound class by the 676 F.3d at 40 41, which it ifi l as by "the class plaintiffs." The Court with § condit 512(m) 's on affirmatively It ld the sa of s considered this "sa sion a \ service seeking harbor protection cannot be provider facts monitoring indicating "For that reaSO::1, assertion's conflict infringing service activi ," ct access to its (id. at 41) This leaves little or nothing to the claim2 of t infringement class. or YouTube cannot be excluded from harbor by dint of a decision to res proprietary search mechanisms u its Even if were to prevail on repeat claim, At various points, e . . their Reply Mem. p. 5, plaintiffs imply that YouTube's takedown of a clip was a tacit concession or determination that it infringed. That is not so. twas iance with a statute which itself repost 10-14 after the subscriber who posted it objects to its removal, unless itigation has been started. See 17 U.S.C. § 512 l (2) (el . 1::" of the d them sands have to proceed on the individual issues of infri (b) The Music Publi r Class In this class, "safe defense ngement class, even if as in the repeat have harbor" to show that (under the fair use, least in overcome, fore each law in the part the nature and amount inf when the say that the burden s individual work of fore zed and was not a of on will instances that the copying was not aut and plaintiff in the it owns the applicable ntiffs) , were work's (depending copyright at was stered) _ Plaintiffs class than in the character':stics But of case, the from ,s _ anot another in the sense of much because of made, That the tion, def showing must still fferent "class" class is means simpler special that one pI no claim ding common answers, no more than a for bus s be so_ may ntiff's will be is typical th separately_ (c) The Two "Issues" Classes 12 of and leaves the and unmanageable aggregat individual claims, better dealt this of issues are sought are to whi ther ringi to cont (i) act fendants ty on direct financial benefit attribut whether fendants' ies user." is "by unilateral reason these class certifications of the ri ir and abili i te and received a e to that activi syndication at s of the , and to cl (i i) tl:ird direction of a PIs.' Br. at 3. issues are deal t 1 18, wi th at 2013 opinion in Viacom (whi parties when 1689071, *5-9 s were briefing and (r ability consi rable length in my was not avail "c ass" motion) to contro ) _e to the at 2013 v-JL and *9-11 (syndication) . There is no need to classes certi of consider them further. CONCLUSION motion for class certification is ed. So ordered. DATED: New York, New 15, 2013 LOUIS L. STANTON U. S. D. J. 13 aintif s to