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On May 15, 2013, a federal district court denied the plaintiffs’ motion for class action certification in a case involving YouTube. The Football Ass’n Premier League Ltd et al v. YouTube Inc., No. 1:07-cv-03582 (S.D.N.Y. May 15, 2013).

We had previously covered the case involving Viacom’s lawsuit against YouTube, where the same district court ruled, on summary judgment, that the copyright law’s safe harbor applied and that the plaintiffs had not proven that YouTube knew or was aware of specific infringements. The plaintiffs in that case were generally involved in creating movies and television shows, whereas the named plaintiffs in this case were typically music publishers or international sports organizations.

The putative class that they wished to represent, however was far larger:

The putative class consists of every person and entity in the world who owned infringed copyrighted works, who have or will register them with the U.S. Copyright Office as required, whose works fall into either of two categories:  they were the subject of prior infringement which was blocked by YouTube after notice, but suffered additional infringement through subsequent uploads (the “repeat infringement class”), or are musical compositions which defendants tracked, monetized or identified and allowed to be used without proper authorization (the “music publisher class”).

Because each class member would have to demonstrate copyright ownership of the allegedly infringed work(s) and each class member would have to establish how YouTube knew or was aware of specific infringements, class certification “will not simplify or unify the process of their resolution, but multiply its difficulties over the normal one-by-one adjudications of copyright cases.”  In other words, stated the judge, with respect to the class aspects of the case, it is a “Frankenstein monster posing as a class action.”

In addition, the judge commented that “copyright claims are poor candidates for class-action treatment.”  Class action litigation is typically justified by an economic need to combine cases whose “costs would prevent individual litigation.”  In copyright matters, however, he found that the economic cost “factor is diminished:  the availability of statutory damages is designed to give litigation value to each individual case.”  The different economics as well as the fact-specific nature of proving copyright ownership and infringement meant that class actions would not be well-suited for resolving these types of claims.

Note that the copyright law’s safe harbor applies only to service providers who meet all of the statutory requirements (including designating an agent to receive notifications of claimed infringement and providing that information to the Register of Copyrights). 17 U.S.C. § 512(c).


Sue Ross (susan.ross@nortonrosefulbright.com / + 212 318 3280) a lawyer in Norton Rose Fulbright’s Intellectual Property Practice.