Case 3:20-cv-04423-JD Document 70 Filed 04/02/21 Page 1 of 5
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`April 2, 2021
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`VIA ECF
`The Honorable James Donato
`United States District Judge
`San Francisco Courthouse, Courtroom 11, 19th Floor
`450 Golden Gate Avenue
`San Francisco, CA 94102
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`Schneider v. YouTube—Case No. 3:20-cv-04423 (N.D. Cal.)
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`Dear Judge Donato,
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`We represent Plaintiff, and putative class representative, Maria Schneider and
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`respectfully submit this letter motion seeking an order compelling production of certain
`documents requested by Plaintiffs’ October 28, 2020 First Set of Requests for Production. We
`certify that the parties have met and conferred on the issues raised here consistent with Your
`Honor’s Standing Orders.
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`Plaintiff respectfully requests that the Court compel Defendants to produce:
`(1) Takedown Notices that copyright holders have submitted requesting Defendants remove
`infringing videos and documents related to such notices; (2) documents and data concerning
`Defendants’ knowledge of uploaders who are repeat infringers as evidenced by multiple
`instances of infringing uploads identified by YouTube’s Content ID system even though
`YouTube did not penalize or ban them; and (3) document and data retention policies.
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`I. Relevant Background
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`Ms. Schneider is a seven-time Grammy Award-winning musician who, like other
`members of the putative class of copyright holders, has had her music and compositions
`repeatedly infringed on YouTube. This lawsuit seeks redress for Defendants’ systematic and
`intentional infringement and facilitation of infringement of copyrighted works. Defendants’
`wrongful conduct is motivated by, and has benefited them through, increased traffic on the
`YouTube platform thereby driving up Defendants’ advertising revenues.
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`YouTube has a two-tiered copyright enforcement system. Content ID is YouTube’s
`premier system that uses digital fingerprints of copyrighted works to identify and block
`infringing videos at the time of upload and does not require the submission of a Takedown
`Notice. (Dkt. 1 ¶¶ 2, 8, 10, 56.) Content ID, however, is available only to large copyright
`holders such as record labels and production companies. (Id. ¶ 57.) Plaintiff and other members
`of the putative class are smaller copyright owners who have been denied access to Content ID.
`(Id. ¶ 99.A.) Without such access, Plaintiff and the class must manually identify infringement
`after it has occurred and submit Takedown Notices. (Id. ¶ 10.)
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`Both elements of this two-tiered system are relevant to the claims here including because
`of their role in establishing whether Defendants should be prohibited from taking advantage of
`safe harbors against copyright liability granted by the Digital Millennium Copyright Act of 1998,
`17 U.S.C. § 512 (“DMCA”). Those safe harbors are not available absent “a policy that provides
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`Case 3:20-cv-04423-JD Document 70 Filed 04/02/21 Page 2 of 5
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`for the termination in appropriate circumstances of” uploaders “who are repeat infringers”. 17
`U.S.C. § 512(i); see also Dkt 1, ¶¶ 12, 88.
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`YouTube publicly touts Content ID as handling the vast majority of its copyright enforce-
`ment issues; but infringing uploads identified by Content ID are never counted as “copyright
`strikes” that YouTube tracks when identifying repeat infringers for termination. (Dkt 1 ¶ 89.)
`Instead, the only way YouTube issues a copyright strike toward termination is on the basis of the
`vastly smaller number of takedown notices submitted after a copyright holder manually finds
`infringement. Infringement caught by Content ID is excluded entirely. (Id. ¶ 88.) Defendants’
`failure to assess penalties, including copyright strikes and termination for these repeat infringers:
`(i) fails to satisfy the reasonableness requirement to track and terminate repeat infringers as
`required for the safe harbors; (ii) encourages and incentivizes users to continue posting
`infringing content; and (iii) creates the constructive (if not actual) knowledge of infringement
`that is an independent basis to deny access to the DMCA safe harbors. (Id. ¶¶ 88-91.)
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`Independent of the safe harbor issues, Takedown Notices are also relevant: (a) to the
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`definition of the class, which includes only those copyright holders who have submitted a
`successful takedown notice (id. ¶ 99.A); (b) because YouTube claims that submitting too many
`such notices is a valid basis to ban non-Content ID copyright holders from using tools designed
`to help them manually locate infringing content (a policy that forms an independent basis to deny
`DMCA safe harbors) (id. ¶¶ 14, 86); and (c) to Defendants’ knowledge that YouTube displayed
`and distributed unauthorized and infringing copies of putative class members’ copyrighted works
`that contain copyright management information (“CMI”) (id. ¶ 144) that “Defendants thereafter
`displayed and distributed . . . with the intent and knowledge that” the CMI identifying putative
`members as the rights holders “had been removed . . . without the permission of Plaintiffs and
`the Class” in violation of relevant statutes (id. ¶¶ 145-48).
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`on Repeat Infringers Caught by Content ID.
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`II. Defendants Must Produce Takedown Notices and Related Documents as Well as Data
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`Request 20 seeks documents sufficient to identify each user who has uploaded or
`attempted to upload videos identified as infringing by Content ID and information about such
`uploads. Request 27 seeks “All Documents Concerning Takedown Notices You have received”
`including the Takedown Notices and certain documents regarding such notices. Request 28
`seeks “All databases Concerning Takedown Notices and Documents sufficient to show all fields”
`thereof. Excerpts of the Requests and Responses are in Exhibits A and B, hereto, respectively.
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`The identity of users who have uploaded infringing videos caught by Content ID, and the
`related requested information, go directly to whether it is reasonable for YouTube’s repeat
`infringer policy to ignore instances of infringement caught by Content ID. This information
`surely will indicate multiple instances of repeat infringers—identified by Content ID—who were
`never terminated. Similarly, Takedown Notices and their dispositions directly relate to the
`adequacy of Defendants’ policy and practices regarding repeat infringers.
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`Notably, “Section 512(i)(1)(A) requires an assessment of the service provider’s ‘policy,’
`not how the service provider treated a particular copyright holder.” Perfect 10, Inc. v. CCBill
`LLC, 488 F.3d 1102, 1113 (9th Cir. 2007). Whether YouTube has reasonably implemented a
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`Case 3:20-cv-04423-JD Document 70 Filed 04/02/21 Page 3 of 5
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`repeat-infringer policy focuses on whether and how it deters users from repeatedly posting
`infringing content and how it identifies repeat infringers. As noted above, Takedown Notices
`also identify the putative class members who include all persons “whose copyrighted works have
`been uploaded to YouTube . . . where such person has had to submit a successful takedown
`notice with respect to such work, and where such person’s work has subsequently been infringed
`or uploaded without permission.” (Dkt. 1 ¶ 99.) Takedown notices are directly relevant to the
`class definition and identify instances of subsequent infringement of putative members’ works.
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`Defendants have refused to produce any Takedown Notices beyond those submitted by
`the named Plaintiffs and have refused to provide any documents or data concerning infringement
`detected by Content ID. Defendants have raised unsubstantiated burden concerns and have even
`refused to confirm Plaintiff’s belief that Defendants have this information (or the vast bulk of it)
`compiled in one or more databases that either can be copied or securely accessed to satisfy
`Defendants’ production obligations. Plaintiff offered to narrow the Takedown Notice requests
`from seeking a copy of every notice to the information listed in Appendix A hereto. In response,
`Defendants offered one month of Takedown Notices. Such a narrow period ignores the purpose
`and need of this discovery and thus is not a meaningful compromise.
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`III. Defendants Must Produce Document and Data Retention Policies.
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`Request 69 seeks all document or data retention policies concerning certain categories of
`documents including Takedown Notices, Content ID (and access thereto), videos posted on or
`deleted from YouTube’s platform, copyright policies, and repeat infringers. By refusing to
`produce even their retention policies, Defendants are further inhibiting Plaintiff’s efforts to
`obtain documents generally by preventing the ability to discover what documents and data they
`retain in the ordinary course. This unjustifiable refusal is particularly inappropriate given that it
`also prevents Plaintiff from evaluating Defendants’ assertions of burden. For example, without
`the retention policies Plaintiff is significantly disadvantaged in negotiations to try to narrow
`requests based on what, by policy, should readily be available.
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`Defendants have also refused to say whether they retain certain documents requested by
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`Plaintiff. For example, Defendants will not say whether they have videos in the form they were
`originally uploaded, which contain statutorily protected CMI metadata that identifies copyrighted
`works. The original videos are directly relevant to Plaintiff’s claim under 17 U.S.C. § 1202(b)
`that Defendants have eliminated, concealed, or failed to preserve CMI contained in the original
`videos that is plainly not present in the videos available on YouTube. (Dkt. 1 ¶¶ 139-48.)
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`Defendants’ retention policies will help provide information concerning these questions
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`of what is even available and allow Plaintiff to pursue a preservation order if relevant evidence is
`not properly being retained, as we fear is the case. Plaintiffs have put Defendants on notice of
`their obligation to preserve. See Al Otro Lado, Inc. v. Nielsen, 328 F.R.D. 408, 416 (S.D. Cal.
`2018) (“a litigant must preserve evidence which it knows, or would reasonably know, is relevant
`to the parties’ claims or defenses.”) (citations omitted). The retention policies are also relevant
`to how Defendants refer to their own documents and data and how it is stored, all of which
`relates to discovery and preservation issues generally.
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`Plaintiff respectfully requests the Court compel production of the requested documents.
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`cc: All counsel via ECF
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`Case 3:20-cv-04423-JD Document 70 Filed 04/02/21 Page 4 of 5
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`Respectfully submitted,
`/s/ Philip C. Korologos
`Philip C. Korologos
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`Counsel for Plaintiff Maria Schneider and Counterclaim
`Defendant Pirate Monitor LTD
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`Case 3:20-cv-04423-JD Document 70 Filed 04/02/21 Page 5 of 5
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`APPENDIX A
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`f)
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`a) The identity of all persons that have submitted a Takedown Notice from January 1, 2015
`to the present;
`b) the date the Takedown Notice was submitted;
`c) the work(s) that were the subject of the Takedown Notice;
`d) the URL of the video(s) that were the subject of the Takedown Notice;
`e) the dates for which the video that was the subject of the Takedown Notice was publicly
`displayed on YouTube;
`the YouTube account of the channel posting the challenged video, including the account
`or channel name, email address, and the IP address associated with the posting of the
`video that was the subject of the Takedown Notice;
`g) all steps taken, and the dates on which they were taken, leading to resolution of the
`Takedown Notice;
`h) any evidence of registration of the copyright(s) for the work(s) that were the subject of
`the Takedown Notice;
`i)
`the outcome of the Takedown Notice; and
`j) whether YouTube has a copy of the video that was the subject of the Takedown Notice.
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