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Class Certification Denial in Premier League v. YouTube Is Further Evidence that IP Isn’t Property

· May 16, 2013

District Court Judge Louis Stanton denied certification of the plaintiff class yesterday in the Premier League’s copyright infringement case against YouTube.  The plaintiffs’ counsel had requested that the court include “every person and entity in the world who own infringed copyrighted works,” who have or will register them with Copyright Office as required, uploaded to YouTube.

Characterizing the case as “a Frankenstein monster posing as a class action,” Judge Stanton refused to allow this unwieldy definition to go forward.  At present, this means the case cannot proceed as a class action.

Interestingly, the order points out that copyright claims are, generally speaking, poorly suited for resolution by class.  “Each claim presents particular factual issues of copyright ownership, infringement, fair use, and damages, among others.”  This is not to say that no copyright dispute can be disposed by class action.  Indeed, a few unique examples exist, like Tasini and Muchnick, but these are the exceptions that demonstrate the rule.  Generally speaking, intellectual property is simply less conducive to class disposition since it less frequently satisfies the Federal Rules requirements such as commonality and typicality.

How can this be?  Class actions are frequently used to resolve property damage disputes.  Examples including ground contamination and polybutylene piping come to mind.

But real property ownership is easily proven, because we mandate recordation of land ownership.  By contrast, copyright registration is optional (and non-existent in most countries), and most IP transactions are not publicly recorded.  Real property defenses are generally narrower, because there are fewer countervailing policy considerations regarding restricting access to property than there are to regulating access to information.  IP, after all, is a utilitarian apparatus, designed to improve social welfare.  The notion of real property, on the other hand, is not subject to the sort of cost-benefit analysis implicit in the constitutional imperative to “promote progress.”  Damage to a real property interest is more easily determined, due to the rivalrous nature of real property usage.  Registered copyright owners, Judge Stanton points out, don’t have to worry about proving damages: they have statutory damages, which “is designed to give litigation value to each individual case.”  Real property owners have no such luxury.

Ultimately, real property is more amenable to class certification because of how it behaves.  Intellectual property doesn’t behave like real property; it behaves like regulation.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.