THR Esquire

Allies are aligning as YouTube battle begins

Now the real fight for YouTube's future starts. Even as Google lawyer Philip Beck told a New York judge that content filtering is coming "hopefully in September," the plaintiffs in the various copyright lawsuits against the video-sharing site have come together against their common enemy in the all-important information-gathering phase of the litigation.

First, let's recap the major cases alleging that Google doesn't do enough to keep copyrighted content off YouTube: In New York, there's Viacom's much-publicized $1 billion suit and a growing class action led by England's Premiere Soccer League and joined Monday by the National Music Publishers' Assn.

A separate class action was filed in Tennessee by the holder of copyrights to nearly 15,000 songs including works recorded by Tim McGraw and Reba McEntire. And there's the Los Angeles case brought by Robert Tur over his videos of the L.A. riots and O.J. Simpson's slow-speed chase. The Tur and Tenessee cases are in the process of being dropped and, if a judge approves, combined with the New York class action.

The alignment is a sign that the costly battle over access to internal YouTube documents and top-level testimony will be key, especially since Google/YouTube has asserted essentially the same defense in each case: that it has little control over what users post to the site and that the safe harbor provisions of the Digital Millennium Copyright Act shield it from liability for infringing content reposted after being taken down at the direction of its owner.

The plaintiffs in the various actions have decided to go at it together, winning approval from the judge in New York to piggyback on each other's efforts. This process certainly has benefits for a defendant like YouTube facing simultaneous cases. (Forcing YouTube to turn over voluminous documents and produce top execs like Chad Hurley and Steve Chen for depositions in multiple cases would be especially onerous.) But it also helps the plaintiffs, who, if they can pool their extensive resources effectively, can craft a discovery strategy best able to produce the information they say will show that YouTube can control the content on its site and derives a direct financial benefit from infringing videos.

"It's a new paradigm," says Louis Solomon, the Proskauer Rose partner who is spearheading the effort along with class-action specialty firm Bernstein Litowitz Berger & Grossman in New York and an army of lawyers for Viacom. "All the plaintiff groups are taking a united front. There's none of the infighting you usually get in class actions. We won't be divided and conquered by Google."

The process, which is expected to take between 12 and 15 contentious months, could shine a factual light on details that copyright owners have long sought concerning YouTube's internal procedures. A public fight also could serve another function: to recruit others to join the case.