When the judge deciding a motion for class certification begins his Opinion by describing the proposed class as a “Frankenstein monster,” you don’t need to be very prescient to predict the outcome of the motion. In The Football Association Premier League Limited v. YouTube, Inc., Judge Louis Stanton refused to certify a class of plaintiffs pursuing copyright infringement claims against YouTube and its parent company, Google, primarily on the grounds that the claims are highly individualized and the proposed class would be unmanageable.
The named plaintiffs in the case are the owners of a diverse range of copyrighted works, including recorded soccer and tennis matches, performances of Rogers and Hammerstein classics and rap videos. The plaintiffs alleged that the defendants “have pursued and continue to pursue a deliberate strategy of engaging in, permitting, encouraging, and facilitating massive copyright infringement on the YouTube website….” Second Amended Class Action Complaint, ¶ 6. They further alleged that the Defendants are able to identify and remove copyrighted material, and that they “steadfastly refuse to respect the rights of members of the Class….” Id. at ¶ 7.
The putative class, which consists of every person and entity worldwide that owns infringed copyrighted works, fell into two categories. Works belonging to the “Repeat Infringement” class were blocked by YouTube after notice, but subsequently were again uploaded to the site. Works owned by the “Music Publisher” class were posted without proper authorization. Plaintiff estimated that there are “at least thousands” of members in the Repeat Infringement class and “hundreds” in the Music Publisher class.
At the outset, Judge Stanton noted that in spite of “superficial similarities,” copyright claims generally are “poor candidates for class-action treatment.” Opinion and Order at 3. Although each plaintiff would be required to prove ownership of a copyright, that the clip was posted without authorization, that it doesn’t constitute fair use, and that YouTube had knowledge of the infringement and refused to remove it, each infringement would have to be resolved on its own facts. “[A]ccumulation of all the copyright claims, and claimants, into one action will not simplify or unify the process of their resolution, but multiply its difficulties over the normal one-by-one adjudication of copyright cases.” Id. at 4. Issues relevant to each copyrighted work “arise from facts peculiar to each protected work and each claimed infringement of it, in a compartmented case differing from every other one.” Id.at 6. “These ‘dissimilarities within the proposed class’ prevent the adjudication of claims en masse.” Id. Further, since by their very nature copyrighted works are unique, the court ruled that no plaintiff’s claim could be typical of claims of the class, as required by FRCP 23. Id. at 7. In addition, “the availability of statutory damages is designed to give litigation value to each individual case,” diminishing any “economic need to combine cases whose costs would prevent individual litigation.” Id. at 4.
The court also ruled that membership in the putative worldwide class would be so numerous as to render impracticable both joinder of the individual members and administration of the claims. Id. Judge Stanton noted that as of March 2010, YouTube has more than one billion daily views, and that 24 hours of new videos are uploaded to the site every minute. Against that backdrop, he stated, “The suggestion that a class action of these dimensions can be managed with judicial resourcefulness is flattering, but unrealistic.” Id. at 3.