Google at Risk: YouTube class action lawsuit changes DMCA copyright game

So asks Proskauer Rose LLP and Bernstein Litowitz Berger & Grossmann LLP, the law firms prosecuting the action of The Football Association Premier League Limited, et. al. v. YouTube, Inc., et al., a copyright infringement class action pending in the United States District Court for the Southern District of New York, as of one week ago today.

What does it portend? For Google, YouTube, rights holders…I spoke with partners at Proskauer Rose to get an inside take on what is at stake.

Louis Solomon is co-chair of the firm's Litigation Department and William Hart is a copyright and intellectual property specialist.

Solomon and Hart underscored to me that for Proskauer Rose, the copyright infringement class action is designed to provide the “thousands of individuals and entities” that believe they were injured as a result of copyright infringement at YouTube the ability to litigate on a level playing field against the "large, well-funded corporation" that is Google.

A class action allows many people who would never have brought an individual action to rely on a lead plaintiff to prosecute the case for them,  Proskauer Rose asserts.

Why is that important?

Both Solomon and Hart are “convinced” not only of the legal groundings of the class action, but of the legal import of holding “Google accountable” for a seeming wanton disregard for rights holders, all copyright owners, regardless of size and resources.

The class action has already spurred interest from a diverse array of content producers and copyright holders well beyond the lead plaintiffs of Premier League and Bourne, according to Proskauer Rose, such as:

Independent Film Producers
Typically holding the exculsive rights to the films, including for Interent exploitation. Many of these films are posted in their entirety, and easily avoid YouTube’s 10 minute clip limitation by seriatim postings. Some films are posted before commercial release.

Animation Companies
Animation, in feature and series length programs, is heavily infringed on YouTube; these include works with well-known characters, with enormous licensing value.

Singer/Songwriter/Performers
Many own the rights to their own songs and recordings or filmed performances, including several “household names,” who have not authorized the exploitation of their material on the Internet. Some of this content is apparently “ripped” from DVD by users and other material includes bootleg concert performances.

At YouTube, “Google is acting outside the norm of the DMCA statute, not even close, they don’t fit it,” Hart asserted to me.

Why is Google’s YouTube business model in direct contradiction with the spirit of DMCA 512C?

Hart told me Google is exploiting the content of others for its "own direct financial benefit,” YouTube is not operating purely as a “storage” vehicle for content uploaded to YouTube.

What’s more, the Google position that it can not be aware of what content is actually at YouTube is an incredulous one, Hart believes:

They are getting takedown notices. Technology can block uploads. They made a choice not to mitigate. That was their decision, they are contributing to the infringement.

Proskauer Rose on the “filtering” issue:

A number of different companies offer content filtering and tracking solutions for Internet content. The issue was raised more than two years ago before the Supreme Court in the Grokster case; several of these companies filed an amicus brief to make it clear that the failure to adopt such technology was a choice and the technology, even as of January, 24, 2005, existed to separate infringing and non-infringing audio-content, to inhibit piracy and to prevent the posting of illegal content on ISP networks.

Obviously, there have been significant developments since that time, not only in the areas of audio for video fingerprinting, but in the fingerprinting of visual images.

For Proskauer Rose, the significance of the class action goes beyond the specific matter and parties involved. While class actions get a “bad rap,” Solomon told me, he believes in this “cause.”

Hart collaborates with Jon Baumgarten, former U.S. Copyright Office General Counsel, in the Proskauer Rose copyright practice. According to the firm, it has had:

A first-hand role in developing copyright law in the courts, by the legislative process, and in drafting the regulations by which these laws are administered.

Our lawyers have been instrumental in the complex multi-industry development and licensing of new copy protection technologies pertaining to DVD audio and video, digital television and Internet distribution content and products; our lawyers have successfully litigated an array of landmark cases, from key fair-use decisions (Texaco, Kinko's) and some of the leading Internet decisions (Lerma, Netcom) to cases in such diverse areas of copyright as choreography (Balanchine), architecture (Demetriades) and stage productions (Radio City).

Solomon told me that while the class action against Google’s YouTube is “risky for us,” because “we don’t get paid unless the judge decides we do good for the class,” he believes the fight is a principled one and a winnable one.

Hart underscored that the class action seeks to make a “positive, structural” difference, in the spirit of class action societal successes such as:

Toxic Tort: (popularized by the Eric Brockovich movie) residents of Hinkley, California, sued Pacific Gas & Electric and achieved not only substantial financial settlements, but ALSO changes in defendant’s environmental practices and remediated contamination.

Strom v. Boeing: Boeing compensated plaintiffs AND agreed to provide annual medical examinations to 700 workers and change toxic exposure practices.

El Paso Natural Gas: Monetary compensation PLUS extensive structural relief to ensure reliable gas supply in California.

Will the class action of The Football Association Premier League Limited, et. al. v. YouTube, Inc., et al., a copyright infringement class action pending in the United States District Court for the Southern District of New York, one day also be in the class action record books for having required Google to pay substantial financial settlements AND change its “massively copyright infringing” business model?