Piracy
The three major record labels are suing Verizon over allegations that the telecom giant effectively encouraged its internet subscribers to steal copyrighted music on a “staggering” scale.
In a lawsuit filed Friday in Manhattan federal court, Universal Music Group, Warner Music Group and Sony Music Entertainment claim that Verizon has “buried its head in the sand” in the face of repeated warnings about piracy on its network, fostering a “safe haven” for illegal activity.
“While Verizon is famous for its ‘Can you hear me now?’ advertising campaign, it has intentionally chosen not to listen to complaints from copyright owners,” lawyers for the labels wrote. “Rather than taking any steps to address its customers’ illegal use of its network, Verizon deliberately chose to ignore plaintiffs’ notices, willfully blinding itself to that information and prioritizing its own profits over its legal obligations.”
The financial stakes for Verizon could be very large. The labels accuse the company of infringing more than 17,000 songs; if a judge awarded the maximum penalty for each of those songs, the damages could total more than $2.5 billion. The allegedly-infringed tracks include music by The Beatles, Michael Jackson, Beyoncé, Katy Perry and hundreds of other top artists.
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The new case is the latest in a long line of major lawsuits aimed at forcing internet service providers to take more proactive steps to eliminate piracy on their networks. In one such case, the labels initially won a shocking $1 billion verdict against Cox Communications.
For years, internet service providers typically weren’t held liable for individual infringements by their millions of users, thanks to a “safe harbor” provided by the Digital Millennium Copyright Act. But starting in the mid-2010s, music companies began arguing that ISPs had forfeited that immunity by ignoring the DMCA’s requirement that they terminate “repeat infringers” from their network.
Beginning with a landmark case filed by BMG against Cox, those arguments have repeatedly proved successful. Major labels have filed similar cases against Cox, Charter, RCN and other ISPs in courts around the country, often winning huge judgments against them.
In the new lawsuit filed Friday, the labels turned those same arguments against Verizon. The company has allegedly received “hundreds of thousands” of notices of illegal file-sharing by specific subscribers, the lawsuit says, but “deliberately refused to take action” so that it could “continue to collect millions of dollars from them.”
“Verizon’s motivation for refusing to terminate or suspend the accounts of blatant infringing subscribers is simple: Verizon valued corporate profits over its legal responsibilities,” attorneys for the labels wrote.
Back in 2019, a federal jury in Virginia ordered Cox to pay $1 billion in a similar case, awarding the labels more than $99,000 for each of 10,017 separate songs. Though that verdict was later vacated on appeal, Cox could still face a similarly large fine when the total is recalculated in a future trial.
In technical terms, the lawsuit accuses Verizon of contributory infringement (meaning the company induced or authorized its customers to pirate the music) and vicarious infringement (meaning the ISP profited from illegal downloading it could have stopped).
A rep for Verizon did not return a request for comment on Monday.
A federal appeals court has overturned a massive $1 billion copyright verdict won by the major record labels against internet service provider Cox Communications, sending the case back for a new award to be calculated.
In a decision Tuesday (Feb . 20), the U.S. Court of Appeals for the Fourth Circuit vacated the huge award against Cox over illegal downloading by its subscribers — one of the largest ever in an intellectual property lawsuit — on the grounds that part of the verdict was not supported by the law.
The ruling sets the stage for a new trial, but Cox could still be on the hook for heavy damages. That’s because, while the appeals court overturned the jury’s decision that Cox committed so-called vicarious copyright infringement, it affirmed that the internet service provider (ISP) had still committed a different type of infringement.
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Universal Music Group, Sony Music Entertainment and Warner Music Group all sued Cox in 2018, seeking to hold the internet giant itself liable for alleged wrongdoing committed by its users. The labels said Cox had ignored hundreds of thousands of infringement notices and had never permanently terminated a single subscriber accused of stealing music.
The case was part of a string of such lawsuits filed against ISPs around the country. Charter Communications, RCN Corp., Grande Communications and others were hit with the same claims around the same time.
ISPs like Cox are often shielded from lawsuits over illegal downloading by the Digital Millennium Copyright Act, or DMCA. But the judge overseeing the case said that Cox had forfeited that protection by failing to terminate people who repeatedly violated copyright law.
Stripped of that immunity, jurors held Cox liable in December 2019 for the infringement of 10,017 separate songs. They awarded the labels more than $99,000 for each song, adding up to $1 billion. Cox eventually appealed that verdict to the Fourth Circuit, a federal appeals court that could overturn it.
In Tuesday’s ruling, the appeals court said that the jury had been correct to find that Cox had willfully committed so-called contributory copyright infringement — meaning the company had induced or authorized its customers to pirate the music. But the court said that the labels had failed to show that Cox committed vicarious infringement, which would have required proving that the ISP profited from the illegal downloading.
“The continued payment of monthly fees for internet service, even by repeat infringers, was not a financial benefit flowing directly from the copyright infringement itself,” the appeals court wrote. “Sony has not identified any evidence that customers were attracted to Cox’s internet service or paid higher monthly fees because of the opportunity to infringe Plaintiffs’ copyrights.”
Because part of the verdict was tossed out, the court ruled that a new trial would be needed to recalculate the damages award — this time, based only on the finding of contributory infringement.
The Recording Industry Association of America (RIAA) welcomed the latest edition of the United States Trade Representative’s (USTR) Notorious Markets Report on Tuesday (Jan. 30), which provides an annual run-down of various forms of copyright infringement, including digital music piracy.
Digital music piracy is not front-of-mind for many listeners in the age of streaming; even the industry itself has focused more of its recent frustration on streaming fraud and the popularity of rain sounds, at least in public comments made in the last year.
However, global music piracy inched up in 2022, according to a March 2023 report from MUSO, a U.K. technology company, which tracked over 15 billion visits to music piracy sites that year.
The USTR’s new report highlighted a handful of sites — including 1337X, Krakenfiles, Rapidgator and Ssyoutube — where people go to stream or download songs illegally. “Ssyoutube is reportedly the most popular YouTube ripping site globally, with over 343 million visitors just in April 2023,” the USTR noted in one example.
“We appreciate the report’s prioritization of thefts that target the music community such as stream-ripping,” said George York, the RIAA’s senior vp of international policy, in a statement.
Overall, music is less of a concern in this year’s USTR report relative to 2023’s. The document’s primary focus is the “potential health and safety risks posed by counterfeit trademark goods.”
The USTR was heartened by the fact that “this year many e-commerce and social commerce platforms took solid steps toward initiating additional anti-counterfeiting practices and adapting to new circumvention techniques used by counterfeiters.”
“Several platforms filed public submissions outlining their implementation of new anti-counterfeiting tools, including releasing educational campaigns, increasing identity verification requirements, and implementing faster and more transparent notice-and-takedown processes,” the report continued. “Additionally, several platforms have invested in artificial intelligence (AI) and machine learning technologies as a way to scale up and quickly adapt traditional anti-counterfeiting measures such as text and image screening.”
The RIAA had asked the USTR to highlight another aspect of AI, according to comments submitted in October, though it was not ultimately included in the report.
At the time, the RIAA noted that “the year 2023 saw an eruption of unauthorized AI vocal clone services that infringe not only the rights of the artists whose voices are being cloned but also the rights of those that own the sound recordings in each underlying musical track. This has led to an explosion of unauthorized derivative works of our members’ sound recordings which harm sound recording artists and copyright owners.”
In a statement following the USTR’s latest release, York “urge[d] the organization to take “a close look in the future at emerging piracy challenges presented by AI, including the widespread illegal use of copyrighted sound recordings and artist names, images, and likenesses to generate invasive and unlawful voice clones and deepfakes.”
Most people send files to collaborators without a second thought — open a new email or text, click attach, hit send. Benjamin Thomas is not most people. “What I normally do is I encrypt it and send it with a 20 character randomized password via email,” he says. “And then I do a verbal confirmation of who the file is going to and deliver them the password through another method.”
Thomas is not employed by the National Security Agency; he’s an engineer who works closely with the rapper Lil Uzi Vert. But since Lil Uzi Vert’s most passionate fans are not fond of waiting for him to release music at his own pace — they want to hear it now, and will happily consume leaked songs in whatever form they can find them — these sort of safeguards are necessary.
Thomas’ precautions have helped drastically reduce the frequency of leaks. “He’s got a real blueprint for engineers to keep sh– under lock and key,” says Jason Berger, a partner at Lewis Brisbois, where he represents a number of producers who frequently collaborate with Lil Uzi Vert. “Uzi’s stuff used to leak a lot,” the attorney notes. “From about March of 2020 until the Pink Tape dropped [in June, 2023], not one f—ing record leaked out.”
But leaks remain a fairly regular occurrence in the music industry, especially in hip-hop, and happen in myriad ways. Despite being digital natives, the younger generation which tends to drive music is susceptible to being swindled: The Federal Trade Commission reported last year that 44% of people ages 20 to 29 said they lost money to online fraud, compared to 20% of people ages 70 to 79. When it comes to music, a lot of leaks boil down to “doing dumb stuff on the internet,” as Thomas puts it.
He puts leak into two different categories: Some stem from carelessness, others from hacking. A lot of the careless leaks are the result of common email phishing techniques.
The producer Warren “Oak” Felder recently received an email from his assistant — or so he thought. “He was asking me for something that made sense: ‘Hey, I need the bounces for some records because management asked,’” Felder says. But one sentence in the email stuck out for its odd construction, so the producer texted his assistant, who confirmed he didn’t send the email. “The amount of fake emails I get is crazy,” Thomas adds.
The same thing also happens by text. “Friends of mine in the industry have fallen victim to people phishing, where they’ll get a text from somebody that is acting like somebody else, maybe an artist, saying they had to get a new phone, for example,” says Anthony Cruz, an engineer who works closely with Meek Mill. Maybe they ask for a demo, or maybe “they’ll send you a link, and that file ends up hacking your entire account,” prying loose any closely guarded tracks.
Obtaining leaks via hacks can be more sophisticated, like the technique known as SIM-swapping. “They’ll first find as much information as they can about the person that they want to hack,” explains the producer Waves, who has an unreleased song with Juice WRLD that’s floating around online due to a leak. “Then they would call your cell phone provider, say, ‘Hey, I lost my SIM card, I just got another one. Can you transfer my number over to this phone?’”
If the perpetrator has been able to glean enough personal information — ranging from troves of previously hacked passwords that exist online to things like a mother’s maiden name — they can waltz past account protections and take over the account of the target phone. “From there, they just look through your email,” Waves says. “Sometimes they’ll even find full Pro Tools sessions and they’ll sell those. Honestly, some of them are pretty good hackers.”
Even if engineers, producers and artists are vigilant about protecting their own phones and computers, that may not be enough. Studios can be surprisingly loose with valuable materials. “A year ago, one of my clients was in one of these major recording studios and all of a sudden he’s hearing a collaboration between an A-list artist and somebody else that nobody even knew happened,” says Dylan Bourne, who manages artists and producers. “He was hearing it by accident in the studio because it was just on the computer.” Thomas “heard a story about somebody sitting outside the studio who logged into the Wi-Fi from a car,” enabling him to make off with files.
And yet another moment of vulnerability occurs when artists ask other acts for features and send over a track. “Now you’re relying on that artist and their team to protect the files,” Cruz says. “It’s out of your hands. A couple of leaks that we have been a part of have been because of that.”
Due to the danger of files ending up in the wrong hands, “a lot of artists are starting to use private servers to share music,” according to Felder. “They’re saying, ‘listen, if you send me the record, don’t text it to me, don’t email it to me.’”
One of Bourne’s clients, a producer, recently had to determine splits on a song he worked on for an A-list artist. The artist convened a listening session on Zoom “so that they could know what it made sense to argue for, but not have access to the song in any capacity,” Bourne says. “In the past people would have sent listening links.”
Another tactic Felder has taken up is “naming things cryptically.” This way, in case someone gets into a Dropbox folder or email and roots around for demos of songs featuring notable artists, at least that person can’t easily figure who is recorded on what.
Leaks are “not a situation that’s going to go away,” Bourne continues. “Artists who care have to get ahead of it and be more protective about the music.”
The RIAA has asked to have AI voice cloning added to the government’s piracy watch list, officially known as the Review of Notorious Markets for Counterfeiting and Piracy.
The RIAA typically writes in each year, requesting forms of piracy like torrenting, stream ripping, cyber lockers and free music downloading to be included in the final list. All of these categories of piracy are still present in the RIAA’s letter to the U.S. Trade Representative this year, but this is the first time the trade organization, which represents the interest of record labels, has added a form of generative AI to their recommendations.
The RIAA noted that it believes AI voice cloning, also referred to as ‘AI voice synthesis’ or ‘AI voice filters,’ infringes on their members’ copyrights and the artists’ rights to their voices and calls out one U.S.-based AI voice cloning site, Voicify.AI as one that should specifically face scrutiny.
According to the letter, Voicify.AI’s service includes voice models that emulate sound recording artists like Michael Jackson, Justin Bieber, Ariana Grande, Taylor Swift, Elvis Presley, Bruno Mars, Eminem, Harry Styles, Adele, Ed Sheeran, and others, as well as political figures including Donald Trump, Joe Biden, and Barak Obama.
The RIAA claims that this type of service infringes on copyrights because it “stream-rips the YouTube video selected by the user, copies the acapella from the track, modifies the acapella using the AI vocal model, and then provides the user unauthorized copies of the modified acapella stem, the underlying instrumental bed, and the modified remixed recording.” Essentially, some of these AI voice cloning sites train its models on stolen copyrights.
It additionally claims that there is a violation pf the artists’ right of publicity, the right that protects public figures from having their name, likeness, and voice commercially exploited without their permission. This is a more tenuous right, given it is only a state-level protection and its strength varies by state. It also becomes more limited after a public figure’s death. However, this is possibly the most common legal argument against AI voice cloning technology in the music business.
This form of artificial intelligence first became widely recognized last spring, when an anonymous TikTok user named Ghostwriter used AI to mimic the voices of Drake and The Weeknd in his song “Heart On My Sleeve” with shocking precision. The song was briefly available on streaming services, like YouTube, but was taken down after a stern letter from the artists’ label, Universal Music Group. However, the song was ultimately removed from official services due to a copyright infringement in the track, not because of a right of publicity claim.
A few months later, Billboard reported that streamers were in talks with the three major label groups about allowing them to file take down requests for right of publicity violations — something which previously was only allowed in cases of copyright infringement as dictated in the Digital Millennium Copyright Act (DMCA). Unlike the DMCA, the newly discussed arrangement regarding right of publicity issues would be a voluntary one. In July, UMG’s general counsel and executive vp of business and legal affairs, Jeffery Harleston, spoke as a witness in a Senate Judiciary Committee hearing on AI and copyright and asked for a new “federal right of publicity” to be made into law to protect artists’ voices.
An additional challenge in regulating this area is that many AI models available on the internet for global users are not based in the U.S., meaning the U.S. government has little recourse to stop their alleged piracy, even if alerted by trade organizations like the RIAA. Certain countries are known to be more relaxed on AI regulation — like China, Israel, South Korea, Japan, and Singapore — which has created safe havens for AI companies to grow abroad.
The U.S. Trade Representative still must review this letter from the RIAA as well as other recommendations from other industry groups and determine whether or not they believe AI voice cloning should be included on the watchlist. The office will likely issue their final review at the start of next year.
Global organization of music publishers the International Confederation of Music Publishers (ICMP) has partnered with piracy tracking company MUSO on a new ICMP Anti-Piracy Platform (APP) that aims to combat unlawful uses of member companies’ musical works. ICMP’s membership of major and independent music companies spans the globe, encompassing 76 national trade associations on six […]
September marks the 20th anniversary of the RIAA launching litigation against consumers in a bid to extinguish — or at least dampen — the flames of peer-to-peer (P2P) file sharing. The consumer litigation was part of a multi-pronged effort that targeted internet service providers, the P2P providers like Napster and Limewire and music fans. In early 2003, nearly 40% of internet users in the United States had used a P2P service to download music, or an estimated 54 million individuals. Upon the RIAA’s announcement of consumer suits, parents began asking their children what they were doing with those stacks of blank CDs; coverage of the pending litigation stifled file sharing before the first notice was filed.
Much has been written about the P2P era, but one thing is for sure: The vast majority of downloaders knew it was illegal. If there was any uncertainty in consumer’s minds, the RIAA litigation helped to clear it up. Perhaps that is the greatest legacy of the consumer litigation, which ended in 2008. The actual law was contested for some time, with arguments about technological innovation and the promotion of that technology for purposes of copyright infringement.
By the 10th anniversary of the consumer litigation in 2013, the record labels had largely won the battle against P2P file sharing. After settlement of the Limewire copyright infringement case in May 2011, the number of people using the remaining services rapidly fell in the United States, and by 2013 had dropped 60% from the peak in 2003. Litigation was one of many contributing factors. The P2P file sharing experience was awful for users, fraught with spoofed files, pop-ups, malware, incomplete and incorrect files, and other maladies. iTunes downloads revived the singles era by offering $.99 tracks. Pandora had been at the top of app store charts for several years, and Spotify was gaining momentum. By 2013, half the U.S. internet using population was streaming, and a handful were beginning to pay for subscriptions. The RIAA moved on to other battles, notably the YouTube “Value Gap.”
As the 20th anniversary of the consumer suits approaches, there has been a stunning reversal in progress in the war to limit consumer access to unlicensed music. An estimated 55 million people in the U.S. acquired or accessed “free” music files in the past year, according to MusicWatch research — the same amount as in 2003. What went wrong? There is an abundance of apps and sites that permit consumers to obtain unlicensed music. Apps that permit YouTube stream-ripping are widely available. Mobile apps available with “free downloads” frequently contain unlicensed content. The very social platforms that the industry relies on to promote artists also harbor unlicensed content. Unlike in the P2P era, the law is clear when it comes to these forms of copyright infringement and licensing requirements, though the DMCA still provides a shield to services that rely on content uploaded by fans.
The problem is the consumer. The teenager who knew that they were committing piracy while downloading In Utero from Limewire is now an adult. Today, they can be easily confused. Their Google music searches may include content that infringes on copyright. Same for the app store on their phone. The recent spate of Taylor Swift Eras tour livestreams on TikTok, while technically the same as a stream-rip of “Cruel Summer,” does not register the same in fans eyes. On top of the unlicensed content, MusicWatch studies indicate 20 million streamers are sharing logins to music streaming services.
The industry has not been silent. The RIAA has litigated against stream-rippers. Mixtape app Spinrilla was successfully sued for infringement and shut down in May. Sony and Universal just sued the Internet Archive for copyright infringement. And as an alternative, streaming companies offer family plans, which raise ARPU and blunt the impact of unauthorized account sharing.
Unlike 2003, however, the industry isn’t paying much attention to the infringing consumer. And why should it? There hasn’t been a collapse in revenues as was experienced during the aughts. Most infringing consumers are active streamers and many pay for a subscription — and a vinyl record or two. There’s not much reason to target music fans. But that doesn’t mean that more shouldn’t be done to educate consumers and further protect the rights of artists and copyright holders.
Russ Crupnick is the principal at market research firm MusicWatch.
A Grammy Award-winning composer has dropped her closely-watched lawsuit against YouTube over access to its anti-piracy tools like Content ID, just a day before it had been set to go to trial — and weeks after a federal judge gutted the case by refusing to let it move forward as a class action.
Maria Schneider spent years litigating her lawsuit, which claimed that YouTube had become a “hotbed of piracy” because it provided effective content tools only to “powerful copyright owners” like record labels and not to “ordinary owners” like artists and songwriters.
But on Sunday (June 11), with a jury trial scheduled to kick off on Monday morning), lawyers for both sides told a federal judge that they had agreed to end the case without a decision: “In light of the stipulation of dismissal of all claims with prejudice, the jury trial set for June 12, 2023, is vacated,” Judge James Donato wrote. “The case is closed.”
The sudden end to the case came just weeks after Judge Donato issued a crucial ruling that dramatically reduced the scope of the lawsuit: That Schneider could not team up with tens of thousands of other rightsholders who she claims suffered similar harm from YouTube’s policies.
Schneider quickly moved to appeal that ruling and postpone the trial, arguing that it would “gravely undermine” the goals of her lawsuit. But a federal appeals court denied that motion on Friday.
Faced with a jury trial they had warned would be “enormously wasteful,” Schneider’s lawyers dropped their case. Neither side immediately returned requests for more information about how the resolution of the litigation was reached, including specific details about any kind of settlement agreement.
Filed in 2020, Schneider’s lawsuit claims that YouTube (owned by Google parent Alphabet) forces songwriters and other smaller rights holders to use “vastly inferior and time-consuming manual means” of policing infringement, allowing piracy of their material to flourish on the platform.
For its part, YouTube says it’s done nothing wrong. In court documents, the company has argued that it’s spent “spent over $100 million developing industry-leading tools” to prevent piracy, but that it limits access because “in the hands of the wrong party, these tools can cause serious harm.”
The case was filed as a class action, aiming to let potentially tens of thousands of aggrieved copyright owners team up to fight what Schneider’s lawsuit called “institutionalized misbehavior.” An expert retained by her legal team said the class could include between 10,000 and 20,000 rights holders.
But in a May 22 ruling, Judge Donato refused to “certify” the case as a class action. Under federal law, class-action accusers must share very similar legal concerns — and the judge said Schneider’s fellow rights holders would have widely different cases against YouTube.
Following that ruling, Schneider quickly moved to postpone the trial. But at a hearing days after the decision, Donato said he would stick to the schedule: “I’m not going to do that. You got a trial set on June 12th. This is a 2020 case; OK. It’s showtime.”
In a June 5 emergency petition to the U.S. Court of Appeals for the Ninth Circuit, Schneider’s lawyers demanded the appeals court put the case on ice while she filed an appeal on the class certification issue. They argued that a “brief” pause would prevent the judge’s “last-minute, haphazard and erroneous” ruling from derailing a case with important implications.
“The named plaintiffs here joined the case to litigate class claims, and to vindicate their view that YouTube tramples on the rights of independent artists and smaller copyright holders overall, not just those of the individual plaintiffs,” her lawyers told the appeals court.
But in a ruling published on Friday evening, the Ninth Circuit rejected those arguments: “The court, in its discretion, denies the petition for permission to appeal,” the court wrote. “Petitioners’ emergency motion for a stay is denied as moot.”
Schneider and her lawyers still could have proceeded to trial against YouTube, litigating the case simply on behalf of her and another plaintiff. But they had strongly indicated in court filings that they did not want to proceed to the trial without class-action status.
A Grammy Award-winning composer who is suing YouTube over access to its anti-piracy tools is now asking a federal appeals court to postpone her looming trial, filing an emergency motion that says the upcoming proceedings will be “enormously wasteful.”
With a trial set to kick off next week, Maria Schneider asked the U.S. Court of Appeals for the Ninth Circuit on Monday to “stay” the proceedings, arguing she needs time to litigate her appeal that seeks to overturn a ruling last month that refused to let the case proceed as a class action.
Schneider says that decision, which means the case will not include tens of thousands of other copyright owners, was not only “manifestly erroneous” but also came “only three weeks before trial” – a sudden change that “gravely undermines” the goals of her case.
“The named plaintiffs here joined the case to litigate class claims, and to vindicate their view that YouTube tramples on the rights of independent artists and smaller copyright holders overall, not just those of the individual plaintiffs,” her lawyers told the appeals court.
“A brief stay here to allow this court to … ensure that the district court’s last-minute, haphazard, and erroneous conclusion that this case cannot be tried on a classwide basis does not endanger the progress of this litigation,” Schneider’s attorneys wrote.
Schneider’s lawsuit claims that YouTube has become a “hotbed of piracy” because the platform provides “powerful copyright owners” like record labels with tools including Content ID to block and monetize unauthorized uses of their content, but fails to do the same for “ordinary owners.” She says songwriters and other smaller rights holders are forced instead to use “vastly inferior and time-consuming manual means” of policing infringement, allowing piracy of their material to flourish.
For its part, YouTube says it has done nothing wrong. In court documents, the company has argued that it’s spent “spent over $100 million developing industry-leading tools” to prevent piracy, but that it limits access because “in the hands of the wrong party, these tools can cause serious harm.”
The case was filed as a class action, aiming to let potentially tens of thousands of aggrieved copyright owners team up to fight what Schneider’s lawsuit called “institutionalized misbehavior.” An expert retained by her legal team said the class could include between 10,000 and 20,000 rightsholders.
But in a May 22 ruling, Judge James Donato refused to “certify” the case as a class action, dramatically reducing the scope of the lawsuit. Under federal law, class-action accusers must share very similar legal concerns – and the judge said Schneider’s fellow rightsholders would have widely different cases against YouTube.
“It has been said that copyright claims are poor candidates for class-action treatment, and for good reason,” the judge wrote at the time. “Every copyright claim turns upon facts which are particular to that single claim of infringement [and] every copyright claim is also subject to defenses that require their own individualized inquiries.”
Following that ruling Schneider quickly moved to postpone the trial, which is set to kick off on June 12, while she launched an appeal. But at a hearing days after the ruling, Judge Donato said he would stick to the schedule: “I’m not going to do that. You got a trial set on June 12th. This is a 2020 case; okay. It’s showtime.”
In Monday’s emergency petition to the appeals court, Schneider’s lawyers argued that such a decision was unfair, forcing them to proceed to an expensive trial when the ruling on class certification might later be overturned on appeal.
“The class should not be forced into a situation where an appellate victory would be illusory, placing them back at square one, and the fruits of three years of hard-fought litigation evaporate even when the district court’s failure to certify a class has been confirmed as erroneous,” her lawyers wrote.
A response to the emergency motion from Google is due by the end of Wednesday.
Read the entire petition here:
A federal judge on Monday (May 22) dealt a major blow to a lawsuit that claims YouTube enables piracy by restricting access to copyright tools like Content ID, refusing to allow the case to proceed as a class action that could have included tens of thousands of rightsholders.
The lawsuit, filed by a composer named Maria Schneider, claims that YouTube has become a “hotbed of piracy” because the platform provides “powerful copyright owners” like record labels with Content ID to block and monetize unauthorized uses of their content, but fails to do the same for “ordinary owners.”
But in his ruling on Monday, Judge James Donato said that Schneider could not team up with tens of thousands of other rightsholders who she claims suffered similar harm from YouTube’s policies, dramatically reducing the scope of the lawsuit.
Cases can only be “certified” as class actions if the various accusers share similar complaints against the defendant. And in Schneider’s case, Judge Donato said different rightsholders would have very different cases against YouTube.
“It has been said that copyright claims are poor candidates for class-action treatment, and for good reason,” the judge wrote. “Every copyright claim turns upon facts which are particular to that single claim of infringement [and] every copyright claim is also subject to defenses that require their own individualized inquiries.”
Filed in 2020, Schneider’s lawsuit claims that YouTube (owned by Google parent Alphabet) forces songwriters and other smaller rights holders to use “vastly inferior and time-consuming manual means” of policing infringement, allowing piracy of their material to flourish on the platform.
For its part, YouTube says it’s done nothing wrong. In court documents, the company has argued that it’s spent “spent over $100 million developing industry-leading tools” to prevent piracy, but that it limits access because “in the hands of the wrong party, these tools can cause serious harm.”
With a trial date looming next month, attorneys for Schneider had urged Judge Donato to let the case move forward as a class action. An expert retained by her legal team suggested that the class “at a minimum” would include between 10,000 and 20,000 aggrieved copyright owners.
“The Copyright Act does not countenance such blatant disregard of individual artists’ intellectual property rights,” her attorneys wrote. “Class actions were created for this institutionalized misbehavior that relies upon the disincentives and lack of resources for a lawsuit absent collective action. A class action is the superior method through which YouTube’s participation in and facilitation of copyright infringement can be held to account.”
But in Monday’s ruling, Judge Donato strongly disagreed. He said the many individual claims against YouTube would require “highly individualized inquiries into the merits,” including a case-by-case assessment of whether YouTube possibly had a valid license to those particular songs.
“Whether YouTube has a license for a particular work will be a matter of intense inquiry at trial,” the judge wrote. “The answer to this inquiry will depend upon facts and circumstances unique to each work and copyright claimant.”
Monday’s order won’t end the case, but it will now proceed to trial based only on copyrights owned by Schneider and two other plaintiffs (Uniglobe Entertainment and AST Publishing). The lawsuit is scheduled for a June 12 trial, though it’s unclear if that date will be changed in the wake of Monday’s decision.
An attorney for Schneider and a representative for YouTube did not immediately return requests for comment on Monday’s order.