Bridging the gap between law and science

Posts by Chris Strong

The FA, Frankenstein and Copyright

By on May 20, 2013 |

The Premier League season ended yesterday with both Tottenham Hotspur (Sean’s team) and Liverpool (my team) having little to celebrate. After finishing mid-table and failing to qualify for a Champions League spot, the players at Spurs and Liverpool have a few months off to think about what went wrong before trying it all again next year. The Premier League now has its own self-reflection to engage in. The company that controls the televised distribution of Spurs’ and Liverpool’s matches was dealt a huge blow last week in its copyright suit against YouTube, with Judge Stanton in the SDNY decrying the case as a “Frankenstein monster posing as a class action.” The Football Association Premier League Ltd. v. YouTube, Inc., No. 07-cv-3582 (S.D.N.Y. May 15, 2013). Along with other plaintiffs from around the world, the Premier League sued YouTube and its parent company Google in 2007, alleging wide scale copyright infringement. The case was remanded by the Second Circuit last year, and the plaintiffs moved to certify a class consisting of “every person and entity in the world who own infringed copyrighted works,” who has or will register their works, and where the works fit into one of two categories: (1) works that were blocked by YouTube after notice, but were subsequently uploaded to YouTube again, or (2) musical compositions that YouTube “tracked, monetized or identified and allowed to be used without proper authorization.” The court found that neither of these subclasses met the requirements for certification. In a harshly worded decision Judge Stanton noted that plaintiffs offered “no explanation” for how members of the worldwide class are to be identified, how copyright ownership is to be proven, or how plaintiffs would show that YouTube was aware of each individual video clip at issue to satisfy the requirements of the Digital Millennium Copyright Act. The court went on to find that, despite “superficial similarities” between cases, “copyright claims are poor candidates for class-action treatment” due to a host of issues ranging from proof of ownership of the copyright to individualized fair use defenses. Whether the Premier League will be permanently relegated to suing on a case-by-case basis is yet to be seen. Interestingly, the ruling did not discuss the ongoing...

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