When one files an allegation of fraud in court, one must present evidence. No, I am not referring to that freak show of litigations about the 2020 election that have been tossed out by over fifty federal courts, including the Supreme Court. I’m talking about YouTube. As discussed in this July post, composer Maria Schneider leads a class action lawsuit against YouTube, alleging that the platform knowingly facilitates copyright infringement of the musical works belonging to the putative class.
At the heart of the Schneider complaint is the fact that YouTube makes its copyright management system Content ID available only to institutional rightsholders with huge catalogs, while leaving independent copyright owners to fend for themselves—i.e. one DMCA notice at a time with no automated detection of infringing files. As noted in that earlier post, Schneider’s complaint presents several arguments whereby YouTube could be found to have voided its DMCA safe harbor, including allegations of “red flag” knowledge of infringement. This suit is also occurring at the same time that Congress has been reviewing the DMCA; and the chronic allegation that platforms like YouTube play fast-and-loose with the knowledge standard will very likely be addressed in any proposed legislative changes.
In September, YouTube filed a counterclaim seeking dismissal on the grounds that Schneider’s co-plaintiff Pirate Monitor LTD used anonymized agents to “fabricate infringement claims by having its own agents upload material from its copyrighted works to YouTube.” The platform alleges that Pirate Monitor engaged in this practice in order “to obtain access to [its] copyright management systems.” In addition to its allegation of fraud, YouTube avers that Pirate Monitor’s actions are an example that justifies its policy of limiting access to Content ID because, it states, some parties cannot be trusted with such tools.
That is one lulu of an accusation, to which Pirate Monitor responded in a brief filed in November that YouTube provides no evidence in its counterclaim of any relationship between the anonymized uploaders of the files in question and Pirate Monitor. The response argues that YouTube’s counterclaims “rest solely on conclusory allegations,” that its assertions of fraud do not meet the evidentiary standard under the rules of civil procedure, and that YouTube lacks the standing to request injunctive relief for the alleged harm caused by the alleged fraud. More broadly, the response accuses YouTube of trying to change the subject, “to spin this case away from being about YouTube’s facilitation and inducement of copyright infringement, and make it instead about who can and cannot be ‘trusted’ to use Content ID.”
I am not about to assert any comments of a factual nature without facts in hand. We’ll see what evidence is, or is not, presented. But I will reiterate that the soul of Maria Schneider’s complaint expresses precisely what hundreds, or thousands, of independent creators contend with on a piracy-rich landscape like YouTube. As noted in the first post, this suit reprises several matters of unfinished business left in limbo after Viacom and YouTube settled their copyright infringement suit in 2014.
At issue then, as it remains today, is evidence suggesting (or even proving) that YouTube’s operators have knowingly attracted and retained highly lucrative market-share by walking the razor’s edge of its responsibilities under the DMCA. In that spirit, YouTube’s preliminary statement in its counterclaim is a cue for a spit-take if nothing else. “Since its founding in 2005,” the brief begins, “YouTube has gone far above and beyond its legal obligations to assist copyright holders in protecting their rights.”
That self-congratulatory assertion hardly squares with the record. When Google acquired YouTube for $1.65 billion, the platform had achieved category-killer status based on a policy of copyright infringement. And although YouTube developed Content ID as a semi-compromise with the corporate rightsholders, it has done nothing for the countless small and independent creators whose works are used and monetized without permission. That story doesn’t even satisfy the industry’s bombast about supporting entrepreneurial creators, let alone anyone’s definition of “going above and beyond.”
