Copyright owners from around the world, including American music publishers and a U.K. soccer league, banded together with much fanfare in 2007 to bring a class action lawsuit against YouTube LLC 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."
Proskauer and its co-counsel Bernstein Litowitz Berger & Grossmann obviously failed to stop Youtube, which is now the third most popular Web site in the world. And thanks to a ruling that came down on Wednesday, their hopes of collecting much in the way of statutory or punitive damages are looking mighty slim too.
In a 13-page order, U.S. District Judge Louis Stanton in Manhattan denied class certification in the case, ruling that the copyright claims against YouTube are far too individualized to be resolved on a class-wide basis. Noting that YouTube’s site traffic now exceeds 1 billion daily views, Stanton wrote that "[t]he suggestion that a class action of these dimensions can be managed with judicial resourcefulness is flattering, but unrealistic."
Judge Stanton’s negativity toward the case didn’t come as a surprise. He tossed it on summary judgment in 2010, along with a parallel $1 billion case brought solely 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 can seek refuge in the "safe harbor" provisions of the Digital Millennium Copyright Act, he 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’s leader turned a blind eye to infringing conduct on the part of its users. Still, Stanton dismissed Viacom’s case once again on April 18, prompting us to name Google lawyers Andrew Schapiro of Quinn Emanuel Urquhart & Sullivan and David Kramer of Wilson Sonsini Goodrich & Rosati our Litigators of the Week.
The parallel class action now seems headed for a similar fate. 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 so-called "music publisher class"). Stanton refused to certify both classes on Wednesday, 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. Proskauer’s Charles Sims told us 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 with the class cert ruling and reviewing their options.
We didn’t immediately hear back from YouTube counsel Andrew Schapiro of Quinn Emanuel.
In related news, on Tuesday U.S. District Judge William Pauley III in Manhattan revived part of a copyright case that Capitol Records LLC, EMI Virgin Songs Inc., and other record labels and music publishers brought against the digital music service MP3Tunes Inc. and its former CEO. In an earlier decision, Pauley had ruled that under the DMCA, MP3Tunes can’t be liable for songs for which it never received take-down notices. Pauley reversed himself on Tuesday, citing the Second Circuit’s 2012 ruling in the YouTube cases. Jenner & Block and Pryor Cashman represent the plaintiffs. Former MP3Tunes CEO Michael Robertson has Ackerman Senterfitt.
This article originally appeared in The Am Law Litigation Daily.
