Tag: youtube

Intense Accusations in Schneider Class Action

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.”

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.

Ocasio-Cortez Video a Good Example of What Rights Holders Really Want

Some news hit the fan late last week that certain parties tried to embarrass newly-elected congresswoman Alexandria Ocasio-Cortez by sharing a video of her dancing with college friends on a Boston rooftop, riffing on the 80s film The Breakfast Club to the tune by Phoenix called “Lisztomania.”  Why anyone imagined this would shame Ocasio-Corez is a mystery to me, but the reason it’s a subject here is in response to an article in Wired alleging that “the only reason you can watch the video now is because of a copyright battle that was settled five years ago.”  As usual, the reporting in this article is rich in attitude but poor in comprehension of copyright law. 

For starters, in her zeal to criticize copyright, writer Louise Matsakis did not look very closely at the AOC video on YouTube, where two bits of evidence demonstrate that its presence on the platform has nothing to do with a settled 2013 litigation between copyright reform activist Lawrence Lessig and Phoenix label Liberation Music.  The first clue is a timeline problem because the video was uploaded three years before Lessig’s confrontation with Liberation, and the second is that little statement below the video, which reads “Licensed to YouTube by Liberation Music, etc. …”. 

I know it’s not very exciting, but the music in this video is simply licensed by the platform, which brings up a broader point that I’ll get to shortly.  For the moment, though, I do not want to minimize the relevance of stories like Matsakis’s confusing the hell of people with regard to copyright law and what is generally called “remix culture.”  It seems clear that a reasonable takeaway from this article is an impression that the AOC video represents a fair use of the song “Lisztomania” and that we have Lessig to thank for affirming that for us.  Not even close.  

In 2013, Professor Lessig included various “Lisztomania” inspired mash-ups and spoofs in the AV he used to support a lecture on the subject of remix culture and his view that copyright enforcement hampers the emerging experiences of digital-age consumers.  When Lessig posted a video of this lecture online, Liberation Music (probably unwisely) filed a DMCA takedown and subsequent lawsuit against Lessig, which was eventually settled in Lessig’s favor. I do not know all the particulars of that conflict, but even if we stipulate that Lessig’s use was unequivocally a fair use, the video featuring “Sandy” Ocasio-Cortez is not.

While this video, and many like it, may (if we really stretch) be considered a comment on 80s culture, on The Breakfast Club, etc., the relevant facts are these: the video makes use of the entire song; the users make no creative changes to, or substantive comment upon, the song; and the song is synched to just over four minutes of motion picture.  This is a classic example of a use that traditionally requires two types of music license, and there is no reason to expect that any court would find fair use in a hypothetical litigation.  

In particular, as a work hosted on YouTube, the video would absolutely be considered a substitute for access to the song through otherwise licensed channels and would, therefore, fail under the fourth prong of a fair use analysis.  Even though the friends of AOC made this video for fun, and it seems wrong to expect that they would ever license the music for such a purpose, the reality is that most rights holders understand that.  What they are not cool with is YouTube earning a fortune from the traffic generated by hosting musical works while it pays songwriters and artists somewhere between a pittance and nothing for that privilege.

Returning to the reason why a video like this one (if it were not licensed) would fail under the fourth prong of the fair use test, it is widely recognized that YouTube is a globally-available substitute for other, paying or better-paying, channels for listening to music.  Sure, this week people will watch the AOC video out of curiosity generated by the news about her—views jumped about two million since I looked on Friday—but in general, YouTube is how millions of listeners play songs they want to hear, regardless of what the videos display.  

So, if 100 users upload a song for 100 different reasons, and each channel gets one million plays, that’s one-hundred-million public performances YouTube gets to monetize, possibly for free.  And that is the complaint songwriters and artists have. It is the reason why proposals for change (e.g. the EU’s Article 13) have been presented—not generally to stop these uses but to share in the revenue generated by them.  And that returns us to the absurd irony that, for all the legal incoherence in Matsakis’s article, the AOC video is actually a perfect example of what artists want—licensed use by the platform!

As a simple comparison, the video-makers in this case are like the local musician who wants to perform at Open Mic night at some club.  Nobody expects that guy to pay for performing rights licenses.  Instead, the venue—as the only money-making entity in the mix—pays performing rights licenses to cover most songs, so the musicians who come to Open Mic can perform whatever they want.  In this analogy, YouTube is the (very big) money-making venue; the college students who made the AOC video are the local musicians; and the copyright owners of the songs don’t want to stop the use, they just want the venue to pay a fair license fee.  

As for the rights holders who do occasionally have reason to stop a use, this should generally be respected, too, but is a case-by-case consideration that truly exists between the user and the copyright owner.  

Meanwhile, the narrative spun by YouTube—with the help of Lessig, the EFF, et al—is that the big bad rights holders should “leave the kids alone,” and this theme is transposed into articles like Matsakis’s in Wired, which then fuels the misconception that videos like the one featuring AOC would be fair use if challenged.  This breeds more unlicensed uses, often of works owned by rather small and modestly-resourced creators, from which YouTube reaps the financial benefit while the creators get nothing.  

As Ocasio-Cortez styles herself a champion of the “little guy,” I’m happy to see our newest millennial Member of Congress laugh off the haters of this innocuous video, but I also hope that, as a representative, she helps foster an understanding that the songwriters and musical artists are the little guy trying to stand up to corporate behemoths like YouTube.