Tag: DMCA

Class Action © Suit Against YouTube is a BIG Friggin’ Deal

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.

Appendix I to DMCA 2020: Section 512 “Safe Harbor” Conditions

May people know that online service providers are shielded from liability for copyright infringement by their users, meaning that a court will, on summary judgment, often excuse a web platform as a named defendant when an infringement has been committed by its customers.  Many people are not aware, however, that a service provider must meet certain conditions in order to remain protected by this “safe harbor.”  

These conditions are voluntary, and although failure to meet them does not automatically make a provider liable for infringement; non-compliance will—or is meant to—void the automatic protection in a potential litigation.  Below is a list of several–but not all–of the key conditions a service provider must meet under the DMCA statute Section 512, including an explanation of “red flag” knowledge:

THIRD-PARTY INFRINGEMENT — The infringing material must have been made available by users/customers.  

This is the foundation of 512—the very reasonable assumption by early online service providers (e.g. the Baby Bells) that users will inevitably transmit infringing material online.  If the platforms were held liable for infringement by its users, this would have stifled investment in developing many platforms that host User Generated Content (UGC).  Infringing material may not be made available by a service provider.  If a site operator directly uploads or transmits infringing material of its own volition, the “safe harbor” does not shield it from liability.

NOTICE & TAKEDOWN — The service provider must expeditiously remove infringing material upon receipt of a valid takedown notice sent by the copyright owner or their agent.  

Often simply called notice-and-takedown (or just takedown), sites that wish to maintain the protection of the “safe harbor” generally comply with this provision, though it is a subject of controversy on all sides.  For creators, sending takedown notices, one infringing use at a time, is the source of the “whack-a-mole” complaint.  For ISPs and some users, the takedown regime is often described as rife with abuse and error.  See post here responding to one “abuse” study cited by Professor Tushnet in her testimony at the first DMCA hearing 2020. 

REPEAT INFRINGERS — Develop and maintain a policy that includes account termination as a final step for repeat-infringers.  

This issue made big news when ISP Cox Communications lost two substantial lawsuits for failure to maintain such a policy.  While the DMC does not clearly define “repeat infringer” or dictate the design of a “repeat infringer policy,” it is usually some type scaled warning process (e.g. six-strikes), but which must result in account termination if the repeat infringer refuses to stop.  For instance, the courts found that Cox’s 14-strikes-and-they-will-eventually-reset-your-account process voided their “safe harbor” in court. 

KNOWLEDGE — Site operators are not required to search for infringement, but they must remove material upon obtaining knowledge that it is infringing.   

Because the knowledge conditions have largely been ignored in practice over the past 22 years, many people do not know they exist or what they are.  Codified in 512(c), the statute expressly states that the service provider “shall not be liable” if (1) its operators do not have actual knowledge of infringement; (2) its operators are not aware of facts or circumstances from which infringing activity is apparent; and (3) upon obtaining knowledge of infringement, expeditiously removes the relevant material.  

That second condition describing “facts or circumstances” is what we often refer to as “red flag” knowledge under the DMCA.  This is the “walks like a duck,” common-sense knowledge standard that has generally been erased from practice.  For instance, many cases and complaints involve famous works used in ways that any layperson could assume is unlicensed; or several famous litigations have found evidence of internal communications indicating that site operators had a pretty good idea that infringement was taking place. 

Don’t Start Copyright Battles You Don’t Understand

gavel smashing lightbulb

Every once in a while, a copyright litigation story makes a fine cautionary tale for users of social platforms, and this is true partly because the conflict tends to spawn misleading headlines or comments that add fuel to an outrage already borne of ignorance.  In this case, I am referring to Prince’s estate easily prevailing on summary judgment in a copyright dispute with a YouTuber named Kian Habib. 

For instance, in 2017, The Blast posted the headline Prince Sues Random Guy for Posting Concert Videos on YouTube, and the very short article that followed naturally made references to Prince’s famously litigious nature still presiding over the management of his estate since his untimely passing in April of 2016.  In a post several years ago, I commented on the nature of Prince’s desire to control the use of his music, opining that it was a natural extension of the passion he put into everything he did, noting that he tolerated neither corporate labels nor web platforms nor even fans making decisions about what he thought best for his music.  Nevertheless, the most famous litigation that bears his name Lenz v. UMG (a.k.a. “The Dancing Baby Case”) still lives in the zeitgeist as an archetype of Prince’s assumed belligerence, despite the fact that Lenz is a boondoggle initiated by the Electronic Frontier Foundation, and not by Prince or the label.

And that brings us to the facts in the matter of Comerica v. Habib, in which Habib, while operating his channel PersianCeltic, uploaded five videos featuring substantial amounts of six songs performed by Prince during one of two concerts Habib had attended.  I know people upload smartphone camera clips from live concerts all the time; and in most cases, when short clips are uploaded to, say, a Facebook page, it will not be the target of a takedown by the artist(s) or their agents.  This does not mean said uploads are necessarily non-infringing, only that the rightsholders do not see them as problematic.

In Habib’s case, however, there are two major distinctions that make him someone other than a “random guy,” as The Blast described him.  First, a YouTube channel seeking subscribers will be seen as legally distinct (i.e. as a commercial enterprise) from a personal Facebook page; and second, Habib took the very unwise step in this case of filing a counter-notice in response to Comerica’s valid takedown request directed at the five videos.  

Do Not File Counter Notices Unless You Know What You Are Doing

As explained in detail in an older post, the DMCA was designed as a mechanism for rightsholders to remove infringing content from platforms without suing anybody.  The premise was that innocent users will inevitably upload material that isn’t theirs; the rightsholders will send a takedown requests; the platform will comply and remove the infringing material; and that would be the end of the matter in most cases.  BUT, if a user files a counter-notice asserting that the takedown was made in error, the user is well-advised to know what he’s talking about because the only option left to the rightsholder at that point is to take legal action against the allegedly infringing user.  

As discussed in the past, when the rightsholder is a small creator with limited resources, the counter-notice procedure can serve as a disadvantage because litigation is very costly and not all counter-notices are valid.  But when the rightsholder has resources—and especially if that rightsholder happens to representing the Estate of Prince!!—a lawsuit will be forthcoming unless the counter-notice is truly on solid ground.  Habib’s ground was not merely squishy but was a swampy marsh filled with half-baked notions about copyright law—a classic example in the Don’t Column for YouTubers and other users of creative works.  

Your Opinion About What Copyright Law Should Be Won’t Help

I don’t know if Habib was represented by counsel, be he ought to have advised to shut up and apologize.  Still, the reason I thought this case worth mentioning is that the defenses argued do resemble the kind of assumptions about copyright that one sees in the digital ether all the time.  For instance, Habib apparently noted that Prince’s copyrights do not cover the live performances at the concerts, which is true, except that his capturing and uploading said performances is called bootlegging. He likewise offered his own legal theory that he is the only copyright owner of the videos—as if that ownership somehow extends to Prince’s music and performances as captured in his recordings.  

Little surprise of course that Habib also attempted a fair use defense without a net, positing that his videos are “transformative in nature because [he] specifically chose the vantage point to record from and alternated between shots of the performance and reactions from the crowd.”  He also argued that capturing banter from the crowd and adding commentary on his channel like “AMAZING” rendered his use “transformative.”  Both crazy and far from the mark on fair use, these amateur theories are typical of the kind of post-Lessig “remix culture” confusion that still gets users into unnecessary trouble.  

I think my favorite among Habib’s fair use defenses (under the third factor considering amount of the work used) is described in the Court opinion thus:  “Habib argues that the third factor weighs in his favor because his videos, in aggregate, add up to ‘approximately 17 minutes” of run-time, which he contrasts with the “approximately 6 hours’ total of the two Prince concerts he attended.”  By that logic, why stop with a mere 6 hours of concert time?  Why not contrast those 17 minutes against Prince’s entire career until Habib’s videos represent some fraction of a percent of Prince’s oeuvre?

Because that’s not how copyright law works, and it is certainly not how the third fair use factor works.  This prong of the defense looks at the amount and substantiality of the use of a single work and weighs that use in context to the purpose of the use assessed under the first factor. How large the author’s catalog, how long his career, or how much money he has earned to date has no bearing on these considerations.  Habib should have been restrained for his own good from making such an off-the-mark defense; nevertheless, his meanderings are typical of the general assumption that copyright enforcement is somehow not implicated (or is automatically mitigated) by the fact that the infringer is apparently “small potatoes” in the scheme of things.

Don’t be like Habib.  Do not invent legal theories based on a smattering of blogs (not even this one), and do not file DMCA counter-notices without a very solid argument that your right to use the work is covered by the exceptions in copyright.  And those cautions go double if the claimant happens to be the Estate of Prince!