Case 3:20-cv-04423-JD Document 330 Filed 05/22/23 Page 1 of 26
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`MARIA SCHNEIDER, et al.,
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`Plaintiffs,
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`v.
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`YOUTUBE, LLC, et al.,
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`Defendants.
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`Case No. 20-cv-04423-JD
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`ORDER RE MOTIONS TO CERTIFY
`CLASS AND EXCLUDE EXPERTS
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`In this copyright dispute, named plaintiffs Maria Schneider, Uniglobe Entertainment, and
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`AST Publishing have asked to certify four classes under Federal Rule of Civil Procedure 23(b)(3),
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`or, in the alternative, an issues class under Rule 23(c)(4). Dkt. No. 243-1. Defendants YouTube
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`and Google (YouTube) oppose certification and have asked to strike the testimony of two of
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`plaintiffs’ experts. Dkt. Nos. 261-1, 268. Certification is denied across the board, and the motion
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`to strike is terminated without prejudice to renewal, as circumstances might warrant.
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`BACKGROUND
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`The summary judgment order provides a wealth of background on this litigation, and is
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`incorporated here. See Dkt. No. 222. In pertinent part, the gravamen of plaintiffs’ case is that
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`YouTube is a known hotbed of copyright piracy but denies most copyright owners access to its
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`premier anti-piracy tool, known as Content ID. See Dkt. No. 99 ¶¶ 1-2. Content ID is “a digital
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`fingerprint tool that compares videos being uploaded on YouTube to a catalogue of copyrighted
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`material submitted by those entities permitted access to the tool.” Id. ¶ 2. According to plaintiffs,
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`only a select group of “powerful” copyright owners are permitted to use Content ID, which allows
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`them to readily identify infringing works and pursue anti-piracy measures. Id. ¶¶ 1, 56. Plaintiffs
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`say that they and other “ordinary” copyright owners who do not have access to Content ID “are
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`Case 3:20-cv-04423-JD Document 330 Filed 05/22/23 Page 2 of 26
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`relegated to vastly inferior and time-consuming manual means” of searching for infringing videos
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`on the massive YouTube platform. Id. ¶¶ 1, 9. Plaintiffs allege that this two-tiered system has
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`allowed repeated infringement of their works. Specifically, plaintiffs say that after they submitted
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`a takedown notice and YouTube removed the challenged video, “the same person or another
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`person has subsequently re-uploaded Plaintiffs’ copyrighted feature-length films, music
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`recordings, or books.” Id. ¶ 79.
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`In effect, plaintiffs allege that YouTube has violated the copyright laws by withholding
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`broad access to Content ID. See id. ¶ 80 (“[C]opyright holders should not be forced to repeatedly
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`demand that the same platform take down infringing uses of the same copyrighted work, while
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`other rights holders are provided access to standard digital fingerprinting and blocking tools.”)
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`(emphasis in original). Plaintiffs also allege that YouTube automatically strips metadata out of
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`uploaded videos, including copyright management information (CMI), which makes it harder to
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`catch infringing conduct. Id. ¶¶ 83-86. The first amended complaint (FAC) presents claims for
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`direct, contributory, and vicarious copyright infringement, and violations of Section 1202(b) of the
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`Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1202(b)(1)-(3), for removal of CMI and
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`distribution of works with CMI removed.
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`A number of developments have changed the litigation terrain since the filing of the
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`complaint. In the original complaint, plaintiff Pirate Monitor, a British Virgin Islands company
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`that owns copyrights to foreign films, alleged that YouTube denied it access to Content ID and
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`restricted the number of takedown notices it could submit in a day. Dkt. No. 1 ¶¶ 17, 65-74.
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`Discovery indicated that Pirate Monitor may have uploaded thousands of videos and then
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`submitted corresponding takedown notices under the DMCA to bolster its infringement claims.
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`See, e.g., Dkt. No. 268-42 at 11 (YouTube interrogatory response stating that “[t]he facts that
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`YouTube has learned based on its investigation to date leave little doubt that Pirate Monitor [and
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`its agents] were responsible both for uploading clips of certain of the works-in-suit (and other
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`related content) to YouTube in the first place and then for misusing the DMCA process to request
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`the removal of those clips by YouTube”). YouTube filed counterclaims against Pirate Monitor
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`based on the alleged scheme, and Pirate Monitor subsequently dismissed all of its claims against
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`Case 3:20-cv-04423-JD Document 330 Filed 05/22/23 Page 3 of 26
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`YouTube with prejudice. Dkt. Nos. 34, 66. Pirate Monitor remains in the case as a counterclaim
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`defendant and has filed a motion for summary judgment on the counterclaims. See Dkt. Nos. 160,
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`260.
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`Another significant development was the Court’s order on YouTube’s summary judgment
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`motion against Schneider. See Dkt. No. 222. YouTube fired a blunderbuss of defenses at
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`Schneider’s infringement claims, see Dkt. No. 163-10, but its main argument was that it held a
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`“blanket catalog license” to all 76 of the musical compositions that Schneider asserted as works-
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`in-suit. Dkt. No. 222 at 5; see also Great Minds v. Office Depot, Inc., 945 F.3d 1106, 1110 (9th
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`Cir. 2019) (licensee is not liable for copyright infringement “if the challenged use of the work falls
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`within the scope of a valid license”).
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`The parties submitted reams of evidence on this issue, which established that there were
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`substantial disputes of material facts. The disputes centered on a chain of contracts and
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`agreements for Schneider’s works. In 2008, Schneider appointed her management company,
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`ArtistShare Music Publishing (AMP), as the “sole and exclusive Administrator” of her musical
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`compositions via a Music Publishing Administration Agreement (AA). Dkt. No. 164-7 § 6. The
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`AA gave AMP “the exclusive right to administer the Compositions” and “to execute in
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`[Schneider’s] name any licenses and agreements affecting the Compositions.” Id. AMP assigned
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`“all its duties” under the AA to Modern Works Music Publishing (MWP), which was a 50% co-
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`owner of AMP. Dkt. No. 164-6 ¶¶ 2-4. In 2014, MWP granted YouTube a broad license to
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`compositions “owned or controlled” by MWP via a Publishing License Agreement (PLA). Dkt.
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`No. 163-3 at 11, § 2(a). The PLA was said to be the “blanket” license that covered Schneider’s
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`musical compositions.
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`The factual conflicts concerned Schneider’s knowledge and authorization of these
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`arrangements. Schneider stated that she had not been advised about the assignment from AMP to
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`MWP or the existence of the PLA, and that MWP has never been her publisher. See Dkt. No. 222
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`at 6. For its part, YouTube proffered emails indicating that MWP “supplied” some of Schneider’s
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`songs to YouTube, and royalty summaries showing that Schneider had received payments from
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`YouTube for several of her works. Id. at 7. YouTube also submitted email communications
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`Case 3:20-cv-04423-JD Document 330 Filed 05/22/23 Page 4 of 26
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`between MWP’s president and Schneider to show that Schneider knew about the PLA and knew
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`that MWP used Content ID to monitor her works. Id. Schneider stated that the communications
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`and royalty statements did not disclose to her the existence of the PLA or MWP’s licensing
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`activities. Id.
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`Another subject of intense disagreement between the parties was the validity of the PLA in
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`light of a consent provision in the AA between Schneider and AMP. Id. at 7-8. Section 7 of the
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`AA required advance notice and written consent by Schneider for a license of her works. See Dkt.
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`No. 164-7 § 7 (“Notwithstanding anything to the contrary expressed or implied herein, we must
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`notify you and obtain your prior written approval for any license we grant on your behalf.”).
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`There was no evidence on summary judgment that AMP or MWP notified Schneider or obtained
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`her written consent before MWP executed the PLA with YouTube. Dkt. No. 222 at 8.
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`Schneider contended that this was fatal to the PLA because under New York law, which
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`governed the AA, Section 7 was a condition precedent to AMP’s, and therefore MWP’s, power to
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`grant a license to YouTube. Id. In Schneider’s view, a failure to satisfy the condition precedent
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`negated any licenses ostensibly granted by the PLA. Id. YouTube argued that Section 7 was a
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`covenant and not a condition precedent, and so a failure to notify Schneider and obtain her consent
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`might have breached the AA, but did not invalidate the PLA. Id. The distinction was critical
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`because the failure to satisfy a condition precedent would mean that “any use by the licensee is
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`without authority from the licensor and may therefore, constitute an infringement of copyright,”
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`but the breach of a covenant would give rise only to “a cause of action for breach of contract, not
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`copyright infringement.” Sohm v. Scholastic, Inc., 959 F.3d 39, 45 (2d Cir. 2020) (internal
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`quotations omitted).
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`Determining whether Section 7 was a condition precedent or a covenant required a detailed
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`analysis of other provisions in the AA, comparisons to other contractual terms that have been
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`deemed conditions precedent under New York law, and consideration of the policy goals of
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`federal copyright law. See Dkt. No. 222 at 9-12; Oracle Am., Inc. v. Hewlett Packard Enter. Co.,
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`971 F.3d 1042, 1051 (9th Cir. 2020) (“A copyright license must be construed in accordance with
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`the purposes underlying federal copyright law.”) (internal quotation omitted). On the facts in the
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`Case 3:20-cv-04423-JD Document 330 Filed 05/22/23 Page 5 of 26
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`record, the Court concluded that Section 7 was a covenant because it did not contain
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`“‘unmistakable language’” in the “‘linguistic conventions of condition.’” Dkt. No. 222 at 9
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`(quoting Sohm, 959 F.3d at 46). Consequently, a failure to satisfy the notice and consent
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`provision in Section 7 of the AA would not nullify the PLA.
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`In the end, a multiplicity of disputes of fact about Schneider’s contractual arrangements
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`and licenses, and related issues, precluded summary judgment. Dkt. No. 222 at 7. A jury will
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`need to resolve these disputes.
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`YouTube raised another license defense on summary judgment based on its Terms of
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`Service (TOS). Id. at 13. The TOS grant a broad license to YouTube for content uploaded by
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`users, and the record established that users must agree to the TOS when creating an account or
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`uploading a video. Id.; Dkt. No. 164-5 § 6(C). YouTube argued it was entitled to summary
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`judgment on more than 100 of Schneider’s infringement claims because she and her agents
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`uploaded several of her works-in-suit to YouTube. Dkt. No. 222 at 13.
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`This question was properly resolved on summary judgment because the record established
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`that Schneider created a YouTube account in 2012, and that at least 15 of her works-in-suit were
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`included in videos that she and third parties acting with her permission uploaded to YouTube. Id.
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`at 13-15. Summary judgment was granted in favor of YouTube for Schneider’s direct
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`infringement claims based on those works. Id. at 15.
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`YouTube also asked for summary judgment on the grounds that many of the alleged
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`infringing videos Schneider identified were time-barred by a one-year limitations period in the
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`TOS. Id.; Dkt. No. 164-5 § 14. The record did not support Schneider’s suggestion that the
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`contractual limitations period was unconscionable, and her interrogatory responses established that
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`she had actual knowledge of 121 alleged infringing videos more than one year before she filed
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`suit. See Dkt. No. 222 at 16-20. Summary judgment was granted for YouTube on the 121
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`untimely alleged infringements. Id. at 20. The parties agreed that Schneider had not identified
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`any infringements of 27 of her works-in-suit, and so summary judgment was granted in favor of
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`YouTube for those works. Id. at 4 n.2.
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`Case 3:20-cv-04423-JD Document 330 Filed 05/22/23 Page 6 of 26
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`Material disputes of fact again precluded summary judgment on Schneider’s claims with
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`respect to CMI under Section 1202(b) of the DMCA. The parties presented conflicting evidence
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`on whether Schneider had identified any works-in-suit for which CMI had been removed, whether
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`she and her agents use CMI to monitor infringement, and whether she had adduced evidence of
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`scienter as required by the statute. See id. at 21-22.
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`Although the claims of plaintiffs Uniglobe and AST were not challenged on summary
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`judgment, the parties’ filings indicate that they have their own factual disputes about ownership
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`and licenses akin to Schneider’s. The FAC alleges that Uniglobe owns copyrights to motion
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`pictures, see Dkt. No. 99 ¶¶ 66-69, but Uniglobe subsequently stated the allegations were “not
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`entirely correct” because the copyright registrations were for dramatic works and screenplays.
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`Dkt. No. 268-35 at 54:4-57:11, 66:5-20 (deposition testimony of Uniglobe’s CEO). Uniglobe also
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`stated that it owns its works-in-suit through transfers of ownership rights and work-for-hire
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`agreements. Dkt. No. 268-33 at ECF p. 5 (Uniglobe’s amended interrogatory responses).
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`Although the takedown notices that Uniglobe submitted to YouTube identified “Uniglobe
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`Entertainment” as the owner of the works, Uniglobe’s representative could not say whether the
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`plaintiff entity, Uniglobe Entertainment LLC (Wyoming), or the separate entity Uniglobe
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`Entertainment LLC (Delaware), owned the works. See Dkt. No. 268-35 at 77:6-10, 93:6-94:16;
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`see also Dkt. No. 248-22 (takedown notice identifying “Uniglobe Entertainment” as the copyright
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`owner). Uniglobe identified more than 60 YouTube videos uploaded by Uniglobe or its agents
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`that contain parts of its works-in-suit, and more than 50 licensing agreements that cover its works-
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`in-suit, including multiple licenses that permit sub-licensing. Dkt. No. 268-33 at ECF pp. 9-14,
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`Ex. A.
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`AST’s situation is similarly convoluted. AST originally asserted infringement claims for
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`print and audio books, Dkt. No. 99 ¶¶ 75-76, but stated later that “only the audiobook versions of
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`the Works in Suit are at issue.” Dkt. No. 268-34 at ECF p. 5 (letter clarifying AST’s interrogatory
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`responses). AST also said that it obtained ownership of its works-in-suit through “agreements
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`with the authors and/or agents of the authors,” and that it uploaded and authorized others to upload
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`clips of its works-in-suit to YouTube. Dkt. No. 268-37 at 4, 7 (AST’s interrogatory responses).
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`Plaintiffs ask to certify four classes under Rule 23(b)(3). See Dkt. No. 243-1. The first
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`proposed class is a “Registered Works Infringement Class” (Registered Works class), to be
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`represented by Uniglobe and Schneider. Id. at 3. It is defined as “[a]ll persons who own
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`copyrights in one or more works: 1) registered with the United States Copyright Office; 2)
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`contained or used in a video that was displayed on YouTube and then removed from YouTube due
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`to a successful Takedown Notice; and 3) contained or used in a video that was displayed on
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`YouTube subsequent to the first successful Takedown Notice and then removed from YouTube as
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`a result of either a second successful Takedown Notice made on or after July 2, 2019, or an
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`allegation of infringement made in a court of law on or after July 2, 2019.” Id.
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`The second proposed class is a “Foreign Unregistered Works Infringement Class” (Foreign
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`Works class), to be represented by Uniglobe and AST. Id. It is defined as “[a]ll persons who own
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`copyrights in one or more works: 1) first published outside the United States; 2) contained or used
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`in a video that was displayed on YouTube and then removed from YouTube due to a successful
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`Takedown Notice; and 3) contained or used in a video that was displayed on YouTube subsequent
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`to the first successful Takedown Notice and then removed from YouTube as a result of either a
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`second successful Takedown Notice made on or after July 2, 2019, or an allegation of
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`infringement made in a court of law on or after July 2, 2019.” Id.
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`The third proposed class is an “International Standard Recording Code Class” (ISRC
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`class), to be represented by Schneider. Id. It is defined as “[a]ll persons who own copyrights in
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`one or more digital form sound recordings of musical works that: 1) has been assigned an
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`International Standard Recording Code (‘ISRC’); and 2) was a component of a video that was
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`uploaded to YouTube that (a) did not include the assigned ISRC and (b) was removed from
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`YouTube as a result of either a successful Takedown Notice made on or after July 2, 2019, or an
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`allegation of infringement made in a court of law on or after July 2, 2019.” Id. at 3-4.
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`The fourth proposed class is a “Clip Filename Class” (CLFN class), again to be
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`represented by Schneider. Id. at 4. It is defined as “[a]ll persons who own copyrights in one or
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`more works that: (1) had an associated Clip Filename (‘CLFN’) field populated with copyright
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`management information (‘CMI’) and (2) was contained in a video uploaded to YouTube (a)
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`Case 3:20-cv-04423-JD Document 330 Filed 05/22/23 Page 8 of 26
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`either without the associated CMI metadata or with the CMI metadata altered and (b) that was
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`removed from YouTube as a result of either a successful Takedown Notice made on or after July
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`2, 2019, or an allegation of infringement made in a court of law on or after July 2, 2019.” Id. at 4.
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`I.
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`LEGAL STANDARDS
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`DISCUSSION
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`The overall goal of Rule 23 is “to select the method best suited to adjudication of the
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`controversy fairly and efficiently.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455,
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`460 (2013) (cleaned up). “The class action is ‘an exception to the usual rule that litigation is
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`conducted by and on behalf of the individual named parties only.’” Comcast Corp. v. Behrend,
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`569 U.S. 27, 33 (2013) (citation omitted).
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`Plaintiffs bear the burden of proving by a preponderance of the evidence that the proposed
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`classes satisfy all four requirements of Rule 23(a) and at least one of the subsections of Rule
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`23(b). Id.; Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 664-65
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`(9th Cir. 2022) (en banc), cert. denied, 143 S. Ct. 424 (2022). The Court’s analysis “must be
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`rigorous and may entail some overlap with the merits of the plaintiff’s underlying claim,” but the
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`merits are to be considered only to the extent that they are “relevant to determining whether the
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`Rule 23 prerequisites for class certification are satisfied.” Amgen, 568 U.S. at 465-66 (internal
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`quotations and citations omitted). The class certification procedure is decidedly not an alternative
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`form of summary judgment or an occasion to hold a mini-trial on the merits. Alcantar v. Hobart
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`Serv., 800 F.3d 1047, 1053 (9th Cir. 2015). The decision of whether to certify a class is entrusted
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`to the sound discretion of the district court. Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1186
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`(9th Cir. 2001).
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`Under Rule 23(b)(3), a class is appropriate when “questions of law or fact common to class
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`members predominate over any questions affecting only individual members,” and a class action is
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`“superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.
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`R. Civ. P. 23(b)(3). Each of the four required elements of Rule 23(a) -- numerosity, commonality,
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`typicality, and adequacy -- must also be established.
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`The commonality requirement of Rule 23(a)(2) is satisfied when there are “questions of
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`law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Because “any competently crafted
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`class complaint literally raises common questions,” the Court’s task is to look for a common
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`contention “capable of classwide resolution -- which means that determination of its truth or
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`falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
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`Alcantar, 800 F.3d at 1052 (internal quotations omitted). What matters is the “capacity of a class-
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`wide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-
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`Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (internal quotations omitted) (emphasis in
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`original). This does not require total uniformity across a class. “The existence of shared legal
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`issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled
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`with disparate legal remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019
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`(9th Cir. 1998), overruled on other grounds by Dukes, 564 U.S. 338. The commonality standard
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`imposed by Rule 23(a)(2) is “rigorous.” Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir.
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`2013).
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`Rule 23(b)(3) sets out the related but nonetheless distinct requirement that common
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`questions of law or fact predominate over individual ones. Fed. R. Civ. P. 23(b)(3). This inquiry
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`focuses on “‘whether the common, aggregation-enabling, issues in the case are more prevalent or
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`important than the non-common, aggregation-defeating, individual issues.’” Olean, 31 F.4th at
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`664 (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016)). Each element of a
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`claim need not be susceptible to classwide proof, Amgen, 568 U.S. at 468-69, and the “important
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`questions apt to drive the resolution of the litigation are given more weight in the predominance
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`analysis over individualized questions which are of considerably less significance to the claims of
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`the class.” Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1134 (9th Cir. 2016). Rule 23(b)(3)
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`permits certification when “one or more of the central issues in the action are common to the class
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`and can be said to predominate,” even if “other important matters will have to be tried separately,
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`such as damages or some affirmative defenses particular to some individual class members.”
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`Tyson Foods, 577 U.S. at 453 (internal quotations omitted).
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`Case 3:20-cv-04423-JD Document 330 Filed 05/22/23 Page 10 of 26
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`“Rule 23(b)(3)’s predominance criterion is even more demanding than Rule 23(a),”
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`Comcast, 569 U.S. at 34. “If the defendant provides evidence that a valid defense -- affirmative or
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`otherwise -- will bar recovery on some claims,” then the Court must “determine, based on the
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`particular facts of the case, ‘whether individualized questions … will overwhelm common ones
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`and render class certification inappropriate under Rule 23(b)(3).’” Van v. LLR, Inc., 61 F.4th
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`1053, 1067 (9th Cir. 2023) (quoting Olean, 31 F.4th at 669). “The question is not whether a great
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`number of plaintiffs will win or lose at trial on the individualized issue.” Id. at 1067 n.11. Rather,
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`the Court “must assess the necessity and manageability of the potential class-member-by-class
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`member discovery process and trial.” Id. Individualized issues “weigh heavy in the predominance
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`balancing” if discovery and trial “must assess thousands of claims one claim at a time.” Id.; see
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`also Bowerman v. Field Asset Servs., Inc., 60 F.4th 458, 469 (9th Cir. 2023) (decertifying class
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`where trial of individualized issues would be “prohibitively cumbersome,” and plaintiffs did not
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`prove that class issues predominated).
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`The “requirements of Rule 23(b)(3) overlap with the requirements of Rule 23(a)” and
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`“courts must consider cases examining both subsections in performing a Rule 23(b)(3) analysis.”
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`Olean, 31 F.4th at 664. The Court finds it appropriate to assess commonality and predominance in
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`tandem, with a careful eye toward ensuring that the specific requirements of each are fully
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`satisfied. See, e.g., Just Film, Inc. v. Buono, 847 F.3d 1108, 1120-21 (9th Cir. 2017).
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`It has been said that “copyright claims are poor candidates for class-action treatment,” and
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`for good reason. Football Ass’n Premier League Ltd. v. YouTube, Inc., 297 F.R.D. 64, 65
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`(S.D.N.Y. 2013). Every copyright claim turns “upon facts which are particular to that single claim
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`of infringement, and separate from all the other claims.” Id. at 66. Every copyright claim is also
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`subject to defenses that require their own individualized inquiries. See, e.g., Kihn v. Bill Graham
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`Archives LLC, No. 20-17397, 2022 WL 18935, at *2 (9th Cir. Jan. 3, 2022) (unpublished)
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`(reversing certification of a copyright class action because “individual issues of license and
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`consent would predominate for the absent class members, who have not yet had the opportunity
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`Plaintiffs had to sift through their claims and exclude those that lack merit”). A claim of copyright
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`infringement typically entails a fact-specific evaluation of “the objective similarities of specific
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`Case 3:20-cv-04423-JD Document 330 Filed 05/22/23 Page 11 of 26
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`expressive elements in the two works” that distinguishes “between the protected and unprotected
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`material in a plaintiff’s work,” and tests “for similarity of expression from the standpoint of the
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`ordinary reasonable observer, with no expert assistance.” Skidmore as Tr. for Randy Craig Wolfe
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`Tr. v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en banc) (internal quotations omitted).
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`This is not to say that certification of a copyright infringement class is per se impossible.
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`The Court certainly does not hold that here. But these factors underscore the challenges that
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`plaintiffs face in seeking to obtain class certification.
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`II.
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`THE REGISTERED WORKS AND FOREIGN WORKS CLASSES
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`The usual approach to class certification is to march through the Rule 23 factors in
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`statutory order, starting with the requirements of Rule 23(a). A different organization is warranted
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`for this copyright case. Plaintiffs face overwhelming problems with commonality and
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`predominance that in themselves bar certification. Consequently, it makes sense to start the
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`analysis with these dispositive issues. The other Rule 23 factors will be discussed in closing. See
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`McCarty v. SMG Holdings, I, LLC, No. 17-cv-06232-JD, 2022 WL 913092, at *7 (N.D. Cal. Mar.
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`29, 2022) (“Because the factors the Court has discussed are sufficient to support the denial of the
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`pending class certification request in its entirety, the Court declines to discuss the remaining Rule
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`23 factors.”); see also Waite v. UMG Recordings, Inc., No. 19-CV-01091 (LAK), 2023 WL
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`1069690 (S.D.N.Y. Jan. 27, 2023) (denying certification of a putative copyright class action on
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`commonality and predominance grounds alone).
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`All of the class definitions proposed by plaintiffs, including those with respect to CMI, are
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`based on a shared element: persons who own copyrights in one or more works. Dkt. No. 243-1 at
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`3-4. Ownership of a copyright is an essential predicate for these claims, see Feist Publ’ns, Inc. v.
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`Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991), just as the existence of a license or other
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`permission to use the works is an essential defense against them, Great Minds, 945 F.3d at 1110;
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`see also 17 U.S.C. § 1202(b) (prohibiting removal or alteration of CMI “without the authority of
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`the copyright owner or the law,” or distribution of such works).
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`Consequently, all of the proposed classes may be evaluated for Rule 23 purposes on the
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`threshold question of whether plaintiffs can demonstrate copyright ownership on a classwide
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`basis, or whether issues of ownership and licenses will entail individualized proof that precludes
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`certification. YouTube’s main argument against certification of each of the proposed classes is
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`that proof of ownership and licensing will necessarily require individualized evidence for each
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`claimant, as the named plaintiffs’ own circumstances indicate. See Dkt. No. 268 at 7-21.
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`Plaintiffs say these questions can be answered on a classwide basis by leveraging takedown
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`notices and other evidence in YouTube’s possession. See Dkt. No. 243-1.
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`The proposed infringement classes are a bellwether test of certification, and so will be
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`taken up first. “Considering whether ‘questions of law or fact common to class members
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`predominate’ begins, of course, with the elements of the underlying cause of action.” Erica P.
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`John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011). The elements of direct copyright
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`infringement are “(1) ownership of a valid copyright, and (2) copying of constituent elements of
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`the work that are original.” Feist Publ’ns, 499 U.S. at 361.
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`For a claim of contributory copyright infringement, a plaintiff “must establish that there
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`has been direct infringement by third parties” as a threshold matter. Perfect 10, Inc. v.
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`Amazon.com, Inc., 508 F.3d 1146, 1169 (9th Cir. 2007). Liability for contributory infringement
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`also requires proof that a defendant “‘(1) has knowledge of another’s infringement and (2) either
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`(a) materially contributes to or (b) induces that infringement.’” VHT, Inc. v. Zillow Grp., Inc., 918
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`F.3d 723, 745 (9th Cir. 2019) (quoting Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 795
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`(9th Cir. 2007)). In the online context, material contribution means the defendant “‘has actual
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`knowledge that specific infringing material is available using its system, and can take simple
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`measures to prevent further damage to copyrighted works, yet continues to provide access to
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`infringing works.’” Id. (quoting Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 671 (9th Cir.
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`2017)) (emphasis in original). “Inducement liability requires evidence of ‘active steps … taken to
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`encourage direct infringement,’” such as “‘advertising an infringing use or instructing how to
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`engage in an infringing use.’” Id. (quoting Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
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`545 U.S. 913, 936 (2005)).
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`Vicarious copyright infringement also requires a gateway showing of direct infringement
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`by a third party. See Amazon, 508 F.3d at 1173. In addition, a plaintiff must demonstrate that a
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