Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 1 of 44
`
`
`
`George A. Zelcs (pro hac vice forthcoming)
` gzelcs@koreintillery.com
`Randall P. Ewing, Jr. (pro hac vice forthcoming)
` rewing@koreintillery.com
`Ryan Z. Cortazar (pro hac vice forthcoming)
` rcortazar@koreintillery.com
`KOREIN TILLERY, LLC
`205 North Michigan, Suite 1950
`Chicago, IL 60601
`Telephone: (312) 641-9750
`Facsimile: (312) 641-9751
`
`Stephen M. Tillery (pro hac vice forthcoming)
` stillery@koreintillery.com
`Steven M. Berezney, CA Bar #329923
` sberezney@koreintillery.com
`Michael E. Klenov, CA Bar #277028
` mklenov@koreintillery.com
`Carol O’Keefe (pro hac vice forthcoming)
` cokeefe@koreintillery.com
`KOREIN TILLERY, LLC
`505 North 7th Street, Suite 3600
`St. Louis, MO 63101
`Telephone: (314) 241-4844
`Facsimile: (314) 241-3525
`
`Joshua Irwin Schiller, CA Bar #330653
` jischiller@bsfllp.com
`BOIES SCHILLER FLEXNER LLP
`44 Montgomery St., 41st Floor
`San Francisco, CA 94104
`Telephone: (415) 293-6800
`Facsimile: (415) 293-6899
`
`Attorneys for Maria Schneider and
`Pirate Monitor LTD
`
`
`
`MARIA SCHNEIDER and PIRATE
`MONITOR LTD, individually and on behalf of
`all others similarly situated;
`
`
`Philip C. Korologos (pro hac vice forthcoming)
` pkorologos@bsfllp.com
`BOIES SCHILLER FLEXNER LLP
`55 Hudson Yards, 20th Floor
`New York, NY 10001
`Telephone: (212) 446-2300
`Facsimile: (212) 446-2350
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
` CASE NO. 5:20-cv-4423
`
`CLASS ACTION COMPLAINT
`
`
`
`JURY TRIAL DEMANDED
`
`Plaintiffs,
`
`
`
`vs.
`
`
`YOUTUBE, LLC; GOOGLE LLC; and
`ALPHABET INC.;
`
`
`Defendants.
`
`
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 2 of 44
`
`
`
`Plaintiffs Maria Schneider and Pirate Monitor LTD, as and for their Complaint against
`
`Defendants YouTube, LLC (“YouTube”), Google LLC (“Google”), and Alphabet Inc. (“Alphabet”)
`
`(collectively, “Defendants”), allege upon personal knowledge as to acts and events taking place in
`
`their presence or upon information and belief for all other acts as follows:
`
`INTRODUCTION
`This case is about copyright piracy. YouTube, the largest video-sharing website in
`
`1.
`
`the world, is replete with videos infringing on the rights of copyright holders. YouTube has
`
`facilitated and induced this hotbed of copyright infringement through its development and
`
`implementation of a copyright enforcement system that protects only the most powerful copyright
`
`owners such as major studios and record labels. Plaintiffs and the Class are the ordinary creators of
`
`copyrighted works. They are denied any meaningful opportunity to prevent YouTube’s public display
`
`of works that infringe their copyrights—no matter how many times their works have previously
`
`been pirated on the platform. They are thus left behind by YouTube’s copyright enforcement system
`
`and instead are provided no meaningful ability to police the extensive infringement of their
`
`copyrighted work. These limitations are deliberate and designed to maximize YouTube’s (and its
`
`parents Google’s and Alphabet’s) focused but reckless drive for user volume and advertising
`
`revenue. Moreover, the Plaintiffs and the Class are not only prevented from using any meaningful
`
`enforcement tool, but the system in place actually exacerbates the harms caused to them including
`
`in a manner that bars Defendants from the protections of any safe harbors under applicable
`
`copyright laws such as the Digital Millennium Copyright Act (“DMCA”).
`2.
`
`The copyright management tool that YouTube provides to the behemoths of the
`
`creative industry is Content ID—a digital fingerprint tool that compares videos being uploaded on
`
`YouTube to a catalogue of copyrighted material submitted by those entities permitted to utilize
`
`Content ID. Content ID is not only unavailable to Plaintiffs and the Class, but it actually insulates
`
`the vast majority of known and repeated copyright infringers from YouTube’s repeat infringer
`
`policy, thereby encouraging its users’ continuing upload of infringing content.
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 3 of 44
`
`
`
`3.
`
`Defendants Alphabet, Google, and YouTube reap billions of dollars annually from
`
`the online hosting of videos, including millions of works that infringe on the exclusive copyrights
`
`of Plaintiffs and the Class. Defendants permit and facilitate this infringement because it furthers
`
`their growth and revenue strategies and because they have determined that Plaintiffs and the Class—
`
`unlike YouTube’s preferred Content ID partners—lack the resources and leverage necessary to
`
`combat copyright infringement on the scale at which it is perpetuated on YouTube.
`4.
`
`YouTube has more than 2 billion users worldwide every month, which according to
`
`Defendants is “almost one-third of the internet.” Users watch more than one billion hours of videos
`
`every single day, equating to approximately 5 billion videos viewed each day. YouTube estimates
`
`that more than 720,000 hours of videos—more than 82 years’ worth—are uploaded every day,
`
`equating to more than 500 hours of content uploaded every minute.
`5.
`
`However, to become the preferred platform for both uploaders and viewers,
`
`Defendants knowingly permitted YouTube also to become a hotbed of piracy. From its start,
`
`YouTube recognized that its success was highly dependent on the rapid growth in online postings
`
`(or “uploads”) of “user-generated content,” to be uploaded quickly and with no prepublication
`
`diligence, making the unauthorized upload of copyrighted material unavoidable. Google purchased
`
`YouTube with full knowledge of YouTube’s rampant copyright piracy, yet Google chose to foster
`
`YouTube’s growth rather than protect copyright holders; it even refused to implement anti-piracy
`
`tools it had previously developed on another video sharing platform designed to curb such
`
`infringement.
`6.
`
`Given the two-sided market YouTube functions in—where it wants to drive both
`
`viewers and content providers--Defendants’ motives are obvious. The ready availability of pirated
`
`content is the source of “network effects.” A vast library of pirated content draws users to the site,
`
`and the growth in users incentivizes the posting of more content on YouTube, which in turn enables
`
`Defendants to reap more advertising revenue. Building extensively on the backs of copyright holders
`
`who never gave authorization for their works to be displayed on YouTube, Defendants report that
`
`they now derive $15 billion in revenue from advertising on YouTube, as well as unspecified billions
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 4 of 44
`
`
`
`from subscriptions, other YouTube services, and the exploitation and monetization of personal data
`
`harvested from all of its users.
`7.
`
`In addition to the billions of dollars of direct advertising revenue, the Google search
`
`and advertising platform independently gains massive value capitalizing on the rapid upload of
`
`materials, much of which infringes on class members’ copyrights. Every time a viewer engages with
`
`the YouTube platform, Google harvests valuable information on individual user preferences and
`
`aggregate user demographics. This data is used to develop targeted advertising for YouTube, for
`
`Google, and further across the internet via Google’s AdSense, AdX, and AdManager products and
`
`services, each of which generate additional billions of dollars for Defendants. Google is estimated
`
`to control 40% of the online advertising market, with much of it built on data it gathers from
`
`YouTube viewers drawn to the website by infringing material.
`8.
`
`Faced with litigation by major music studios and other significant rights holders,
`
`Defendants have crafted distinct and disparate systems of copyright “enforcement” on their
`
`platform. For those entities with vast stores of copyright material and thus the leverage to require
`
`Defendants to appease their copyright management concerns, YouTube created its Content ID
`
`program, which allows qualifying copyright owners automatically to identify and manage their
`
`content on YouTube. Videos uploaded to YouTube are scanned against a database of files that have
`
`been submitted to Defendants by those qualifying copyright owners. Such owners get to decide
`
`what happens when content in a video on YouTube matches a work they own; the available options
`
`are (on a country-specific basis) to block the whole infringing video from being viewed, monetize
`
`the infringing video by running ads against it (in some cases sharing revenue with the uploader), or
`
`track the infringing video’s viewership statistics.
`9.
`
`Smaller rights holders, including Plaintiffs and the Class, are, however, denied
`
`access to Content ID and thus are relegated to vastly inferior and time-consuming manual means
`
`of trying to police and manage their copyrights such as scanning the entirety of YouTube postings,
`
`searching for keywords, titles, and other potential identifiers. Plaintiffs and the Class must then file
`
`individual takedown notices with YouTube via a web-form, email, or postal mail for each video
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 5 of 44
`
`
`
`their searches identify. Defendants have, in effect, created a two-tiered system whereby the rights
`
`of large creators with the resources to take Defendants to court on their own are protected, while
`
`smaller and independent creators like Plaintiffs and the Class are deliberately left out in the cold.
`10.
`
`The inequities of these disparate systems are pervasive. The following table
`
`contrasts the protections offered by Content ID with those accorded ordinary copyright enforcers.
`Content ID
`Ordinary Rights Enforcers
`Screening is performed at the moment of
`Screening is performed only after a video is
`upload, before a video is published on
`uploaded, published on YouTube and the
`YouTube preventing public availability
`infringing material is available to the general
`through YouTube of the infringing
`public.
`material.
`Screening is performed automatically
`using the digital fingerprint system
`provided by YouTube that automatically
`compares the actual content of each
`uploaded video with the entire catalog of
`Content ID-protected works.
`Content ID automatically imposes the
`rights holder’s enforcement option to
`block the infringing video from
`publication on the platform, to monetize
`the infringing video through advertising
`revenue, or monitor download statistics
`of the infringing video.
`
`Screening (if any) must be performed through
`keyword searches in an attempt to identify
`infringing works via titles, authors, and
`keywords attached to the video by the
`uploader.
`
`Once the rights holder identifies infringing
`videos, the rights holder must file a takedown
`notice with YouTube for each offending
`video, specifying the URL location of the
`offending work, and providing evidence of
`the holder’s right to enforce the copyright.
`After a delay of days or weeks during which
`the infringing material remains publicly
`available and the harm caused by the
`infringement continues, YouTube may
`suspend or remove the video.
`
`
`
`11.
`
`The superior protections of the Content ID system are completely denied to
`
`Plaintiffs and the Class no matter how many times their copyright protected works are infringed
`
`on the YouTube platform. If a rights holder does not have the economic clout to qualify for
`
`Content ID, YouTube refuses to add their works to the Content ID catalog for prepublication
`
`protection even if those works have previously been infringed on YouTube hundreds or even
`
`thousands of times. Through its use of these systems, YouTube exerts significant control over
`
`which infringing videos may be published on its site and which infringing videos are never viewed
`
`by the public.
`12. Moreover, Defendants have completely divorced their Content ID system from
`
`their legally mandated repeat-infringer policy. The DMCA provides a safe harbor against copyright
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 6 of 44
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`infringement claims for entities such as YouTube so long as they formulate and reasonably
`
`enforce a policy of terminating repeat copyright infringers from their platform. YouTube purports
`
`to take advantage of this safe harbor by having a policy that assesses a “copyright strike” against
`
`the uploader when an ordinary rights holder files a takedown notice and terminating uploaders
`
`when they accrue three active copyright strikes within 90 days. However, when infringing content
`
`is uploaded and identified by the Content ID system, no copyright strikes are issued.1 Thus, when
`
`Google brags that 98% of its “copyright issues are resolved via Content ID,”2 what it really means
`
`is that nearly all identified copyright infringing material is entirely insulated from its repeat-
`
`infringer policy. This two-tiered system essentially trains YouTube’s billions of uploading users
`
`that there is essentially minimal risk to uploading to their hearts’ content. And while YouTube’s
`
`Content ID partners are protected from these repeat infringers because their uploads will always
`
`be screened against the Content ID catalog before publication, Plaintiffs and the Class remain at
`
`risk of recurring infringement by these same repeat infringers.
`13. While Defendants state that Content ID eligibility is based on a variety of criteria,
`
`only five percent or less of all people who apply for Content ID are approved. Plaintiffs have
`
`applied and have either been rejected or received no response. In the meantime, Plaintiffs
`
`continue to suffer copyright piracy. Plaintiffs have had their exclusive copyrights infringed
`
`multiple times, despite having sent prior successful takedown notices for those very same works
`
`and despite Defendants’ having actual and constructive knowledge that YouTube is being used
`
`continuously to infringe Plaintiffs’ copyrights.
`14.
`
`Defendants have forfeited their claim to the DMCA safe harbor protections in
`
`other ways as well. For example, rights holders who seek to actively enforce their copyrights by
`
`filing numerous takedown notices run the risk of losing access to YouTube’s rudimentary tools
`
`purportedly designed to facilitate the takedown notification process. Moreover, Defendants
`
`
`1 YouTube’s own Help page expressly states, “Content ID claims don’t result in a strike.”
`https://support.google.com/youtube/answer/2814000?hl=en, last visited July 1, 2020.
`2 “How Google Fights Piracy,” p. 30,
`https://www.blog.google/documents/27/How_Google_Fights_Piracy_2018.pdf, last visited July 1, 2020.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`
`
`

`

`Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 7 of 44
`
`
`
`arbitrarily limit the number of takedown notices they will process from rights holders such as
`
`Plaintiffs and the Class. YouTube also constrains the use of certain automated tools meant to help
`
`locate infringing content on the platform. Defendants are liable for the copyright piracy on their
`
`platform because their current approach to copyright infringement, including the operation of the
`
`Content ID system, fails to satisfy the requirements mandated in order to be protected under the
`
`DMCA safe harbor.
`15.
`
`The overall effect of Defendants’ inducement of copyright infringement,
`
`manipulation of search, willful blindness, data harvesting, and selective enforcement of copyright
`
`screening tools is to depress the value of creators’ work and destroy the free marketplace for those
`
`works, where willing buyers and willing sellers can transact business. Instead, Defendants have
`
`created an alternative and unlawful marketplace, where the advertising revenue and valuable data it
`
`derives from publishing those works—free of charge to the consumer—bears no rational
`
`relationship to the creator’s real cost of producing those works; this significantly injures the
`
`creators, but enormously benefits Defendants. The ready availability on YouTube of unauthorized
`
`copyrighted materials and the whack-a-mole approach required for creators to remove infringing
`
`material works disincentivize the creation of new works and reduce the value of all works.
`
`PLAINTIFFS
`Plaintiff Maria Schneider, a citizen of the state of New York, is a multiple Grammy
`
`16.
`
`award-winning composer and musician. Plaintiff Schneider holds exclusive copyrights to
`
`numerous works, including the songs “Hang Gliding,” “Green Piece,” and “Journey Home.”
`17.
`
` Plaintiff Pirate Monitor LTD is a limited company with its principal place of
`
`business at Intershore Chambers, 3rd Floor, Geneva Place, Road Town, Tortola, VG1110 British
`
`Virgin Islands. Pirate Monitor owns the exclusive rights to reproduce, publicly perform, publicly
`
`display, and distribute the following works, among others, over the internet: Csak szex és más semi;
`
`Zimmer Feri 2; and Immigrants – Jóska menni Amerika.
`
`
`
`
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 8 of 44
`
`
`
`
`
`DEFENDANTS
`Defendant YouTube, LLC, is a Delaware limited liability company with its
`
`18.
`
`principal place of business at 901 Cherry Avenue, San Bruno, California 94066. In 2006, YouTube
`
`was purchased by Google and since that purchase YouTube has operated as a wholly owned and
`
`controlled subsidiary of Google. At all times relevant to this Complaint, the website YouTube.com
`
`was operated and controlled by either or both of YouTube, LLC and Google LLC. From time to
`
`time, YouTube conducts business as Google. For example, YouTube’s support documentation,
`
`including an explanation of how the Content ID program works, is hosted on
`
`“support.google.com.”
`19.
`
`Defendant Google LLC is a Delaware limited liability company with its principal
`
`place of business at 1600 Amphitheatre Parkway, Mountain View, California 94043. Since 2006,
`
`Google has wholly owned and controlled YouTube. Google is a wholly owned and controlled
`
`subsidiary of Defendant Alphabet. Google is the alter ego of YouTube and Alphabet. For
`
`example, YouTube and Google share user data from their respective websites, youtube.com and
`
`google.com, in order to create new content and personalized advertisements on both sites.
`
`Google’s search engine is the largest preceding source of all visits to YouTube, more than 6 times
`
`that of any other website. YouTube and Google also combine both products for purposes of
`
`Google’s AdWords advertising program, which allows an advertiser to determine that if a person
`
`searches for a specific term on Google’s search engine (e.g., financial advisor), the advertiser can
`
`direct that the next time that user watches a video on YouTube that person will see an
`
`advertisement for financial advisory services. Google has also recently begun testing integrating
`
`links to its search engine within YouTube’s search results.
`20.
`
`Defendant Alphabet Inc. is a Delaware corporation with its principal place of
`
`business at 1600 Amphitheatre Parkway, Mountain View, California 94043. Alphabet wholly owns
`
`and controls Google. Alphabet is the alter ego of Google. Alphabet is the alter ego of YouTube
`
`and Google. YouTube and Google direct all profit to, and report revenue through, Alphabet.
`
`
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 9 of 44
`
`
`
`
`
`JURISDICTION
`This is a civil action seeking damages and injunctive relief for copyright
`
`21.
`infringement under the Copyright Act, 17 U.S.C. § 101 et seq.
`22.
`
`This Court has original subject matter jurisdiction over all claims pursuant to 28
`
`U.S.C. §§ 1331 and 1338(a).
`23.
`
`This Court also has subject matter jurisdiction under 28 U.S.C. § 1332(d) because
`
`the proposed Class contains more than 100 persons, the aggregate amount in controversy exceeds
`
`$5,000,000 and at least one proposed Class Member is a citizen or subject of a foreign state and
`
`Defendants are citizens of the State of California.
`24.
`
`This Court has personal jurisdiction over Defendants. YouTube, d/b/a Google
`
`LLC, Google, and Alphabet each maintain their headquarters in California and in this District. All
`
`Defendants have transacted business within California and contracted to supply goods or services
`
`in California in connection with the matters giving rise to this suit. Defendants have also
`
`committed copyright infringement causing injury to Plaintiffs and members of the Class in
`
`California. Defendants regularly solicit and do business in California and derive substantial
`
`revenue from goods used or services rendered. Defendants’ address for takedown notices of
`
`infringing content on YouTube is in California and in this District.
`25.
`26.
`
`Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b), (c) and 1400(a).
`
`YouTube’s terms of service provide that all claims relating to the terms of service
`
`or arising out of the terms of service shall be litigated in federal or state courts in Santa Clara
`
`County, California, USA, and that YouTube consents to personal jurisdiction therein.
`
`
`I.
`
`NATURE OF THE ACTION
`The Importance of Copyright and Copyright Enforcement
`27.
`Copyrights are the means by which creators of original content protect their moral
`
`and economic rights in that content. Respecting the financial value of creators’ works is such a
`
`cornerstone of our democracy that it was enshrined in the U.S. Constitution, which expressly gave
`
`Congress the power to “promote the Progress of Science and useful Arts, by securing for limited
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 10 of 44
`
`
`
`Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
`
`U.S. Const. Article I, Section 8. “Copyright law encourages people to create original works and
`
`thereby ‘ultimately serves the purpose of enriching the general public through access to creative
`
`works.’” Fogerty v. Fantasy, Inc., 510 U.S. 517, 526 (1994). The Supreme Court of the United States
`
`has recognized that by “establishing a marketable right to the use of one’s expression, copyright
`supplies the economic incentive to create and disseminate ideas.” Harper & Row Publishers, Inc. v.
`Nation Enters., 471 U.S. 539, 558 (1985) (emphasis added).
`28.
`
`The importance of copyright enforcement is not limited to the United States. As
`
`far back as the early 1500s, courts in France recognized that only the creators of works, or their
`
`assigned heirs, should have the right to publish those works. As early as 1886, more than 10
`
`countries signed or ratified the Berne Convention for the Protection of Literary and Artistic
`
`Works, which has a stated purpose to promote the “protection of the rights of authors in their
`
`literary and artistic works.” The Convention ensures that authors are afforded the same
`
`protections in those signatory countries as they would enjoy within their own country, thereby
`
`promoting the worldwide distribution of creative works while at the same time ensuring that the
`
`rights of the author of a work created in one country will not be circumvented through the
`
`infringement of those rights in another country. As of today, 188 countries, including the United
`
`States, have signed the Berne Convention.
`29.
`
`The 1976 Copyright Act makes it illegal for people to publicly perform, publicly
`
`display, distribute, or reproduce a copyrighted work except in limited instances, and provides for
`
`statutory damages, willful statutory damages, and the right to recover attorneys’ fees. 17 U.S.C. §§
`
`501 et seq.
`30.
`
`YouTube is by far the world’s largest “user-generated-content” publishing
`
`platform, where billions of users upload and publish not only true user-generated-content, but also
`
`works that infringe the copyrights owned by others, including on occasion by Plaintiffs and the
`
`Class. Without adequate protection for copyright holders’ rights, YouTube poses an existential
`
`threat to copyright laws. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 928
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 11 of 44
`
`
`
`(2005) (noting “digital distribution of copyrighted material threatens copyright holders as never
`
`before, because every copy is identical to the original [and] copying is easy”). For that reason, it is
`
`critical that YouTube not encourage or promote copyright infringement, act in a willfully blind
`
`manner to ignore identifiable copyright infringement on its site, alter or remove metadata that is
`
`protected “copyright management information,” or deploy its copyright protection tools in an
`
`inadequate and selective manner.
`31.
`
`Each of the copyright-infringing acts alleged herein has diminished the moral,
`
`legal, and economic rights of Plaintiffs and Class members. The infringements have unjustly
`
`benefitted Defendants and have eroded the incentive to create new content in the same way by
`
`taking away a true marketplace, by misappropriating the revenues that should have been earned by
`
`Plaintiffs and the Class through their works, by diminishing the value of their ownership rights in
`
`such works, and/or by requiring individual rights holders to spend endless time pursuing “whack-
`
`a-mole” DMCA takedowns rather than devoting their time and energy to creating new
`
`copyrightable works.
`II.
`
`
`YouTube Was Designed to Enable and Facilitate Copyright Infringement
`
`A. YouTube Uses Various Methods to Drive Uploads of Videos for Display on
`Its Platform and to Drive Views of Such Videos From Its Platform.
`
`
`32.
`
`YouTube, now the world’s most popular online video site, launched in 2005. Users
`
`can access the platform in two distinct, yet complimentary roles: as “uploaders”—who publish
`
`videos to their unique YouTube pages, known as “channels,” and as “viewers”—who watch,
`
`review, and comment on the videos published by others.
`33. When a user uploads a video or song or other piece of work, YouTube has its
`
`users copy the original video file into a file type specified by YouTube; it then adds one or more
`
`copies of the newly formatted file to its servers, and may remove, replace metadata, or add new
`
`metadata to the file, all in order to make the file available for public viewing on its platform. Upon
`
`upload, the altered video file becomes part of the YouTube library for publication and display
`
`through YouTube’s website, which Defendants control and directly and indirectly profit from.
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 12 of 44
`
`
`
`34.
`
`YouTube actively encourages viewers to find and play videos on its website in
`
`numerous ways. When a viewer enters a search request into YouTube’s search bar, Defendants
`
`return a list of matching videos in its library accompanied by thumbnails and other metadata about
`
`the video, such as a title chosen by the uploader and the number of YouTube views. A YouTube
`
`viewer can then select that video to play by clicking on one of the thumbnails or the
`
`accompanying information in the list of videos supplied by Defendants in response to the user’s
`
`search request. When the user does so, Defendants then display the chosen video by streaming
`
`audio and video data from YouTube’s servers to the user’s computer or phone so that the user can
`
`view the selected video. As a video streams, YouTube causes the user’s computer or phone to
`
`download audiovisual data of the selected video.
`35.
`
`YouTube also enables any viewer to “embed” further publishing of any video in
`
`the publicly available YouTube library into another website such as Facebook, a blog, or any other
`
`website where a user can post video content. The embedding feature is available by default for
`
`every video on YouTube, and the embedded video will appear as a picture with the YouTube logo
`
`prominently displayed. When someone clicks on the embedded video, it will stream the audio and
`
`video from YouTube’s servers in the context of the host website; in this way, the YouTube
`
`platform is still displaying the video by transmitting the streaming video content from YouTube’s
`
`own servers to the viewer’s computer. Defendants also enable YouTube viewers to “share” videos
`
`with others—for example, through email. If a viewer wants to share a video by email, the feature
`
`will generate an email with a link to the specific video. Any recipient of that email can click on the
`
`link to be brought to the YouTube website in order to view the video.
`36.
`
`YouTube’s “embed” and “share” features have contributed significantly to
`
`YouTube’s growth in popularity, number of users, amount of content uploaded, and the data it
`
`captures and exploits from its uploaders and viewers. Because YouTube provides its users with the
`
`ability to view and listen to copyrighted materials free of charge, when the user would otherwise
`
`have to pay for such access, billions of users are naturally drawn to YouTube. Defendants’ “free”
`
`business model, built on piracy and an abuse of the DMCA safe harbors, has made YouTube the
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 5:20-cv-04423-JCS Document 1 Filed 07/02/20 Page 13 of 44
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`primary outlet for music and video streaming and display. YouTube and Google, in combination,
`
`are the predominant means by which the public searches and discovers music, film, and other
`
`artistic works. As a result, artists like Plaintiffs and the Class must accede to the overwhelming
`
`market power of YouTube, because if you are not on YouTube, you don’t exist.
`37.
`
`Defendants also drive viewers to view multiple videos on YouTube by generating
`
`recommendations based on a closely guarded algorithm and metadata system that recommends
`
`additional videos to view next to the selected video as it is being played, and by their “AutoPlay”
`
`feature that queues subsequent videos to play sequentially. Since 2016, YouTube’s
`
`recommendation algorithms have utilized Google Brain to refine and maximize their effectiveness
`
`in increasing “user engagement” and viewing time. Defendants recently proclaimed that YouTube
`
`has been successful in controlling over 70% of the works viewed by the user through its
`
`recommended video algorithm and Autoplay feature.3 As YouTube’s technical lead for YouTube
`
`recommendations has put it, “[YouTube] also wanted to serve the needs of people when they
`
`didn’t necessarily know what they wanted to look for.”4
`38.
`
`As a result of YouTube’s recommended video algorithm, search engine algorithm,
`
`and Autoplay feature, Defenda