A 2020 class action lawsuit filed by musician Maria Schneider accused YouTube of mass copyright infringement, failing to suspend ‘repeat infringers, and restricting access to anti-piracy tools, among other allegations.
Despite YouTube’s findings that at least one member of the putative class acted fraudulently (Pirate Monitor) to fabricate ‘evidence’ of YouTube’s alleged shortcomings in support of the lawsuit, litigation continued. More than two years later, with both sides committing significant resources to a highly complex case, both Schneider and YouTube filed motions for summary judgment.
YouTube’s Motion For Summary Judgment
Schneider’s first amended complaint alleged that YouTube and its users infringed her copyrighted musical compositions and sound recordings, and that YouTube facilitated infringement by removing copyright management information (CMI) from her copyright works, in violation of the DMCA.
YouTube’s motion for summary judgment states that Schneider licensed her content to YouTube, presented no evidence of DMCA violations, and in some cases had filed untimely claims. An order handed down by Judge James Donato on Thursday addresses each aspect in detail.
Copyright Law: Infringement Standards
For a platform like YouTube to be held liable for direct infringement, it needs to be actively involved in that infringement, not just a “passive handler” of content supplied by others.
A claim of contributory (secondary) infringement requires the plaintiff to show that direct infringement has been carried out by third parties.
A claim of vicarious infringement requires the plaintiff to prove that the defendant had the practical ability to prevent infringement, had a direct financial interest in that infringement, yet failed to mitigate it.
YouTube Wins Partial Summary Judgment
Schneider’s amended complaint alleged direct and indirect infringement for 76 copyrighted musical compositions and two sound recordings. Judge Donato says that discovery failed to produce any evidence of infringement for 27 of Schneider’s copyrighted works, and that the musician acknowledges that to be true.
“Consequently, summary judgment is granted in favor of YouTube for those 27 works,” the order reads.
YouTube’s Licensing Defense
YouTube’s main defense to Schneider’s copyright claims in other works is that it holds a “blanket catalog license” granted by Modern Works Music Publishing (MWP).
According to YouTube, that license covers all of Schneider’s musical compositions, so Schneider’s infringement claims cannot succeed. The big questions now center on the nature of that license and whether YouTube can rely on it to fend off liability.
In 2008, Schneider appointed her management company ArtistShare Music Publishing (AMP) as the “sole and exclusive Administrator” of her musical compositions under a Music Publishing Administration Agreement (AA). AWP subsequently assigned “all its duties” in the agreement to MWP, which was already a 50% co-owner of AMP.
In April 2014, MWP and YouTube signed a Publishing Licensing Agreement (PLA) that granted YouTube a license to compositions “owned or controlled” by MWP. As acknowledged by the Judge, the license appears broad enough to “sound the death knell” for all infringement claims filed by Schneider.
“Consequently, the salient question is whether YouTube has demonstrated as a matter of law and undisputed fact that the PLA grants it a license to all of Schneider’s works-in-suit. It has not,” Judge Donato writes.
“The PLA grants YouTube a license only to compositions ‘owned or controlled’ by MWP. Viewing the record in the light most favorable to Schneider, the question of whether MWP owned or controlled Schneider’s compositions is replete with factual disputes that preclude summary judgment.”
Describing YouTube’s arguments to the contrary as “unavailing,” Judge Donato says that the existence of “quintessential factual disputes” precludes summary judgment for YouTube on the basis of the PLA.
YouTube’s ‘Terms of Service’ Defense
YouTube’s motion for summary judgment claims that when Schneider and her agents uploaded copyrighted content to YouTube, that content became licensed under YouTube’s Terms of Service (TOS). In this respect, YouTube says it is entitled to summary judgment on 114 of Schneider’s 381 infringment claims.
The YouTube TOS grants YouTube “a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform” any content uploaded by users. The TOS also grants a non-exclusive license to YouTube users which enables them to “use, reproduce, distribute, and perform” that content “as permitted through the functionality of the Service and under these Terms of Service.”
The record shows that Schneider created a YouTube account in 2012, through which she and authorized third parties uploaded content to YouTube, including some of the works listed in the lawsuit.
Since the ‘TOS’ license is so broad, Judge Donato says that YouTube cannot be held liable for direct infringement of works covered by it. However, the license does not insulate YouTube from indirect infringement liability, including when users violate YouTube’s TOS by uploading infringing content.
As a result, YouTube wins summary judgment for direct infringement claims on 15 named works but related indirect infringement claims stand.
Time-Barred Claims
YouTube’s TOS contains a contractual one-year limitation period and a three-year limitations period under the Copyright Act. The record shows that Schneider had actual knowledge of 121 allegedly infringing videos more than a year before she filed this lawsuit against YouTube, and had actual knowledge of 73 allegedly infringing videos more than three years before.
Schneider claims that she had to accept YouTube’s TOS because without a YouTube account, she couldn’t submit any takedown notices. The record shows that YouTube accepts takedown notices via email and fax, among other methods.
Based on this and other refuted claims, Judge Donato concludes that YouTube has established that 121 infringements for which Schneider admits to having actual knowledge are barred by the one-year limitations clause in the YouTube TOS.
DMCA / CMI Removal
Section 1202(b) of the DMCA states that without approval from the copyright owner, no person is allowed to remove or alter Copyright Management Information (CMI), distribute or import for distribution CMI knowing that it has been removed or altered, or distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that CMI has been removed or altered.
The statute also has a ‘scienter’ requirement, i.e intent or knowledge of wrongdoing. In this case, knowledge that removing/altering CMI will “induce, enable, facilitate, or conceal an infringement.”
YouTube says that Schneider has produced no evidence to support her claim that YouTube removed or altered CMI in her works, or acted with intent/knowledge, as required under the DMCA. The Court’s view is much more broad.
“This argument sinks on a reef of disputed facts. To start, it is not necessary for Schneider to establish that YouTube itself removed or altered her CMI to state a claim under section 1202(b).
“Schneider could still prevail under section 1202(b)(3) upon a showing that YouTube distributed her works with the knowledge that CMI had been removed, even if [YouTube] did not remove it,” Judge Donato’s order reads.
Overall, due to the existence of numerous disputed facts, summary judgment for YouTube is denied on the issue of CMI. The parties are now required to file a numbered list of Schneider’s remaining works-in-suit and corresponding infringement claims by January 12.
Judge Donato’s order can be found here (pdf)
