When Viacom et al, in 2014, settled their copyright infringement suit against YouTube, that outcome had significant consequences for millions of independent creators. For one thing, the settlement left YouTube and other major platforms to over-emphasize the district court’s summary judgment that the DMCA had fully shielded the video platform against any liability in that case—this despite the appellate court having found that holding to be premature because there remained triable issues of both law and fact. Thanks to the settlement, however, those questions were never adjudicated. (See post here noting Viacom is unfinished business.) But now, some of those same questions of law, and very similar questions of fact, have been reprised in a class action suit, filed against YouTube on July 2nd, by Grammy winning composer Maria Schneider. And this case is going to be a doozy.
For one thing, the class of creators represented by Schneider has little motive to settle before the courts thoroughly weigh every aspect of the complaint. Further, the plaintiffs have about a decade’s worth of evidence, and experience with the DMCA, that Viacom et al did not have when they filed against YouTube in 2009. Further, the Schneider complaint reminds us that YouTube was built on mass copyright infringement that it still thrives on mass copyright infringement.
In this case, as in Viacom, plaintiffs cite evidence that YouTube’s founders clearly recognized that their platform was as existentially dependent on hosting infringing material as any pirate site on the web. “[A YouTube] founder argued against the company removing obviously infringing videos, claiming that site traffic would drop by 80% if it did so,” the Schneider complaint avers. At that time, the Google Video platform, which did monitor and remove infringing material, could not compete with what Google then called the “rogue” YouTube.
So, naturally, when Google purchased the “rogue” YouTube in 2006 for $1.65 billion, “[They] chose to continue YouTube’s aggressive policy of allowing obviously infringing videos to be uploaded with zero ‘friction’ and no screening, thus allowing infringing and illegally posted videos to be played and monetized by YouTube unless and until a takedown notice was received from the copyright owner,” the complaint continues.
Then, under pressure from the major, corporate rights holders, YouTube created Content ID, the platform’s automated system, which identifies protected material, alerts rights holders when their works are uploaded, and gives them options as to what to do with those uploaded files. But this system is not available to the vast number of independent creators like Maria Schneider. The complaint states, “Only approximately five percent or less of all applicants who attempt to sign up for Content ID are approved for its use.”
Keep in mind that when I say “independent” creators, I am not referring to some singer/songwriter you haven’t heard of and has a hundred views on the platform. “Independent” comprises, for instance, thousands of musical artists with substantial fan bases and multiple albums (songs you hear on the radio), but whose rights are not managed by some large label or publisher YouTube wants to try to placate. This is not to suggest that the larger rights holders are satisfied by the state of enforcement. To the contrary, they’ve made it quite clear that the volume of infringement, even with Content ID, is unacceptable. I merely mean to emphasize that the class referred to here as “independent” is very valuable when monetized.
Left out of the Content ID program, countless independent rights holders have been trying for years to fend for themselves—manually sending one notice per infringement via the DMCA notice-and-takedown provision. And what enables YouTube to exploit this class of creators is the presumption of immunity under the “safe harbor” provisions of the DMCA. See post here for more detail, but the basic premise was that, as long as a platform meets certain conditions, taking certain actions to remove infringing material, it cannot be held liable for infringing uploads by its users.
But now, the Schneider complaint makes a compelling argument that YouTube had voided its safe harbor immunity vis-à-vis the plaintiff class in this litigation. Among other interesting aspects of this case, it is the first time, in a long time, that anyone will ask the court to articulate the law on some critical DMCA matters that have otherwise been left to the anecdotal and editorial buzz of the blogosphere.
As just one example (and a bit of unfinished business in Viacom), anyone who follows these issues will be eager, or perhaps anxious, to know whether the court ultimately agrees with Schneider that YouTube has both “actual” and “constructive” knowledge that it hosts infringing material. What constitutes “knowing” when material is infringing is a hotly contested topic, and one that will be of particular interest to the Senate Judiciary Committee in its ongoing review of the DMCA’s efficacy since its passage in 1998.
There will be plenty more to write about this case, perhaps digging into some of the legal nitty-gritty. YouTube’s response will almost certainly be a motion to dismiss, arguing that the platform is unequivocally shielded by the DMCA safe harbor. Consequently, the district court will have to weigh the full scope of Schneider’s multiple arguments that the platform has vitiated that liability shield, and whether any of those allegations implicate triable issues of law and fact. And, as mentioned above, that’s exactly what the Second Circuit Court of Appeals decided in 2014. So, this should be quite a show.