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Opinion: FootballAssoc_V_Youtube

Opinion: FootballAssoc_V_Youtube

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Published by LJ's infoDOCKET
May 15, 2013
May 15, 2013

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Published by: LJ's infoDOCKET on May 16, 2013
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u~ITED
STATES DISTRICT
COURT
SOUTHERN
DISTRICT
OF
NEW
YORKTHE
FOOTBALL
ASSOCIATION PREMIER
LEAGUE
LIMITED,
BOURNE
CO.
(together
th
its
Affiliate
MURBO
MUSIC
PUBLISHING,
INC.),
THE
MUSIC
FORCE
LLC,
CAL
IV
ENTERTAINMENT
LLC,
NATIONALMUSIC
PUBLISHERS' ASSOCIATION,
THE RODGERS
&
HAMMERSTEIN
ORGANIZATION,
EDWARD
B.
~~RKS
MUSIC
COMPANY,
FREDDY
BIENSTOCK
MUSIC
COMPANY
d/b/a
BEINSTOCKPUBLISHING
COMPANY,
ALLEY MUSIC
CORPORATION,X
RAY DOG
MUSIC,
INC.,
FEDERATION FRANCAISE
DE
~ENNIS,
THE
MUSIC
FORCE MEDIA
GROUP
LLC,
SIN
DROME
RECORDS,
LTD.,
on
behalf
of
themselves
all
others
similarly situated,
Plaintiffs,
07
Civ.
3582(LLS)
-against
OPINION
AND ORDER
YOUTUBE,
INC.,
YOUTUBE,
LLC,
and
DENYING
CLASS 
GOOGLE
INC.,
CERTIFICATION 
Defendants.---X
Forty
five
years
ago
Judge
Lumbard
of
the
tedStates
Court
of
Appeals
for
s
rcui
t
called
a
case
a
"Frankenstein
lin,
onster
pos
as
a
class action."
Eisen v.
Carlisle
&
391
F.2d
555,
572
(2d
Cir.
1968)
(Judge
Lumbard
dissent
from
remand)
.1
The
description
fits
the
class
aspects
of
this
case.
1
Six
years
later
the
United
States
Supreme
Court
endorsed
dismissal
of
the 
class allegations,
417
U.S.
156
(1974),
with
a
reference to
Judge Lumbard's
characterization
of
it,
id.
at
169. 
1
Case 1:07-cv-03582-LLS Document 371 Filed 05/15/13 Page 1 of 13
 
putative class consists
every
person
and
enti
in
the
world
who
own
inf
nged
copyrighted
works,
who
have
or
will
register
them
with
u.s.
Copyright
Office
as
required,
whose
works
fall
o
either
two
categories:
they
were
subject
of
infringement
which
was
blocked
by
YouTube
after
notice,
suffered
additional
infringement through
subsequent uploads
(the
"repeat
infringement
class"),
or are
musicalcompositions
which
defendants
tracked,
monetized
or
identi
ied
and
allowed
to
be
used
without
proper
authorization
(the
"music
publisher
class").
Plaintiffs
assert that
there are "at
least
thousands
of
class
members"
theInf
ngement
Class,
and
"hundreds"
ln
the
Music
Publi
r
Class
(Mem.
in
Supp.
Certification,
undated
butserved
Dec.
12,
2012,
p.
20).
Plaintiffs
offer
no
explanation
of
how
the
dwide
members
of
this
proposed
class
are
to
be
identified,
how
they
are
to
prove
copyright
ownership themsel
ves
or
their
authorized
,
or
how
they
will
establi
that
defendants
became
aware
the
specific
video
cl
whi
allegedly infringed
of
the
potentially
tens
of
thousands
of
musical compositions
incorporated
into
specific
videos.
ess
an
exception
appl
the
it
Millennium
Copyright
Act
17
U.S.C.
§
512(c)
("DMCA")
res
that
You'I'ube
have
legal
knowledge
or
awareness
ofthe
specific
infringement,
to
be
liable
for
it.
Viacom
Int'
1
v.
2
Case 1:07-cv-03582-LLS Document 371 Filed 05/15/13 Page 2 of 13
 
YouTube,
Inc.,
718
F.
2d
514
(S.D.N.Y.
2010),
aff'd,
676
F.3d
19
(2d
Cir.
2012)
Defendant
YouTube
does
not
e
infr
ng
material:
it
offers
a
website
on
whi
ot
post
deo
,
some
of
whi
inf
by
ting
or
copying)
materi
in
copyrighted
works.
Thus
YouTube
is
mai
all
to
be
secondari
liable
for
its
users'
uploading
an
infri
ng
cl
onto
the
service.
An
idea
of the
scope
of the
materials
involved
reay
be
gl
from
the
record
in
che
parallel
Viacom
International,
Inc. v.
YouTube
case
in
this
court
(07
Civ.2103),
which
est
ishes
as of
March 2010
"
site
craffic
on
YouTube
had
soared
to
more
than
one
bill
daily
views,
with
more
than
24
hours
of
new
videos
uploaded
to
the
site
every minute."
(676
F.3d
at
28;
718
F.
.
2d
at
518).
The
suggestion
that
a
class
action
of
these
dimensions
can
be
with
j
cial
resource
ness
is
flattering,
b~t
istic.
Generally
,
copyright claims
are
poor
candi
s
class
action
treatment.
They
have
icial
similarities.
The
nature
of
their
1
rements
and
analyses
are
similar:
aintiff
must
prove
ownership
a
copyright
and
the
copyrighted
work
infringed
by
a
cl
ip
posted
on
Yo~Tube
by one
who
had
no
zation
frore
theght
owner
or
1
icensee
to
post
it,
3
Case 1:07-cv-03582-LLS Document 371 Filed 05/15/13 Page 3 of 13

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