Schneider v. YouTube

Case: 23-80049, 06/05/2023, ID: 12728359, DktEntry: 2, Page 1 of 89
EMERGENCY MOTION UNDER CIRCUIT RULE 27-3

RELIEF NEEDED NO LATER THAN JUNE 9, 2023
No. 23-80049
IN THE
United States Court of Appeals
For the Ninth Circuit
MARIA SCHNEIDER, UNIGLOBE ENTERTAINMENT, LLC, AND AST

PUBLISHING LTD., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs-Petitioners,
v.
YOUTUBE, LLC AND GOOGLE LLC,
Defendants-Respondents.
On Petition for Permission to Appeal from the

United States District Court for the Northern District of California
No. 3:20-cv-04423-JD
District Judge James Donato
PLAINTIFFS-PETITIONERS’ EMERGENCY MOTION FOR A STAY

PENDING RESOLUTION OF THEIR RULE 23(F) PETITION
Philip C. Korologos George A. Zelcs

pkorologos@bsfllp.com gzelcs@koreintillery.com
Eric J. Brenner Randall P. Ewing, Jr.
ebrenner@bsfllp.com rewing@koreintillery.com
Jeffrey Waldron David Walchak
jwaldron@bsfllp.com dwalchak@koreintillery.com
BOIES SCHILLER FLEXNER LLP KOREIN TILLERY, LLC
55 Hudson Yards, 20th Floor 205 North Michigan, Suite 1950
New York, NY 10001 Chicago, IL 60601
Telephone: (212) 446-2300 Telephone: (312) 641-9750
Facsimile: (212) 446-2350 Facsimile: (312) 641-9751
Counsel for Plaintiffs-Petitioners
EMERGENCY MOTION UNDER CIRCUIT RULE 27-3

RELIEF NEEDED NO LATER THAN JUNE 9, 2023
Additional Counsel
Joshua Irwin Schiller Stephen M. Tillery

jischiller@bsfllp.com stillery@koreintillery.com
BOIES SCHILLER FLEXNER LLP Carol O’Keefe
44 Montgomery St., 41st Floor cokeefe@koreintillery.com
San Francisco, CA 94104 KOREIN TILLERY, LLC
Telephone: (415) 293-6800 505 North 7th Street, Suite 3600
Facsimile: (415) 293-6899 St. Louis, MO 63101
Telephone: (314) 241-4844
Facsimile: (314) 241-3525
Counsel for Plaintiffs-Petitioners

CIRCUIT RULE 27-3 CERTIFICATE
Pursuant to Ninth Circuit Rule 27-3, I hereby certify the following
information:
Relief Requested
The relief Plaintiffs request in the emergency motion that accompanies this
certificate is a stay of proceedings in the district court pending resolution of their
Rule 23(f) petition. Relief is needed as soon as possible but no later than June 9,
2023, the last business day before June 12, 2023, the date that trial is scheduled to
begin in this case.
The Existence and Nature of the Emergency
Under Circuit Rule 27-3, Plaintiffs “need[] relief within 21 days to avoid
irreparable harm” that would result if Plaintiffs are forced to try this case on an
individual basis while this Court is considering whether the case should instead
proceed on a class basis.
On May 22, 2023, only three weeks before the scheduled trial date of June
12, 2023, the district court released an order denying certification of any of
Plaintiffs’ proposed classes. For reasons explained in Plaintiffs’ Rule 23(f) petition
and the emergency motion accompanying this certificate, the district court’s ruling
was manifestly erroneous and merits reversal by this Court. Unless a stay is
granted as soon as possible but no later than June 9, 2023, Plaintiffs will be forced
to proceed to trial on June 12 on their individual claims. If the Court reverses the
district court’s denial of certification thereafter, the class claims will then need to
be tried in a separate proceeding, resulting in Plaintiffs incurring substantial costs
associated with duplicative trials.
Further, if Plaintiffs are required to try their individual claims on June 12,
their claims in this litigation will be finally decided. At that point, even if the
Court reverses the district court’s denial of class certification, and even if Plaintiffs
have prevailed at trial, Plaintiffs may perversely face the prospect that they are no
longer viable class representatives.
Finally, forcing Plaintiffs to proceed with trial on June 12 would frustrate
one of Plaintiffs’ principal purposes in bringing this case—challenging Defendants’
reliance on the safe harbor in the Digital Millennium Copyright Act (“DMCA”) to
try to insulate themselves from liability for copyright infringement on the YouTube
platform. Defendants have vigorously litigated this issue over the past three years,
even emphasizing before the district court that the DMCA safe harbor “is a big
deal to us.” Dkt. 195 at 48:11–16.
Nonetheless, before the district decided Plaintiffs’ class certification motion,
Defendants disclosed that they would withdraw their DMCA safe harbor
affirmative defense in the event an infringement class were not certified. Dkt. 309.
After the district court denied class certification, it granted Defendants’ request to
withdraw the affirmative defense over Plaintiffs’ objection. 5/25/2023 Hrg. Tr. at
17:11–21:4. Thus, now, following a class certification ruling that Plaintiffs
respectfully submit is manifestly erroneous on multiple grounds, the individual
Plaintiffs face having to try a case that will not result in what they have been trying
to achieve, and what they would be able to achieve, through class action
litigation—a preclusive, final judgment on whether YouTube qualifies for the
DMCA safe harbor. On the other hand, with a stay, if Plaintiffs’ petition is granted
and the Court reverses, judicial review will again be possible on the central issue of
whether Defendants’ DMCA safe harbor defense is viable.
Plaintiffs’ Timely Efforts to Request a Stay
At the scheduled pretrial conference on May 25, 2023, Plaintiffs informed
the district court of their intention to file a Rule 23(f) petition seeking review of the
class certification decision and sought a stay of trial proceedings. The district court
denied Plaintiffs’ motion, stating, “I’m not going to do that. You got a trial set on
June 12th. This is a 2020 case; okay. It’s showtime.” 5/25/2023 Hrg. Tr. at 21:14–
15. In light of this ruling, Plaintiffs informed the district court that they would
seek a stay from this Court, to which the district court stated, “That’s perfectly
fine.” Id. at 21:16–19.
Plaintiffs promptly filed their Rule 23(f) petition eight days later, on June 2,
2023, in advance of the 14-day deadline. This stay motion was filed the same day.
Notice
Counsel for Plaintiffs notified the Clerk of this motion via voicemail and
email on June 2, 2023.
Counsel for Plaintiffs notified Defendants of this motion and served the
motion via email on June 2, 2023. Defendants indicated they oppose the motion
for a stay.
Contact Information
The following list contains the telephone numbers, email addresses, and
office addresses of the attorneys for the parties.
For Plaintiffs-Petitioners:
Philip C. Korologos
pkorologos@bsfllp.com
Eric J. Brenner
ebrenner@bsfllp.com
Jeffrey Waldron
jwaldron@bsfllp.com
BOIES SCHILLER FLEXNER LLP
55 Hudson Yards, 20th Floor
New York, NY 10001
Telephone: (212) 446-2300
Facsimile: (212) 446-2350
Joshua Irwin Schiller

jischiller@bsfllp.com
BOIES SCHILLER FLEXNER LLP
44 Montgomery St., 41st Floor
San Francisco, CA 94104
Telephone: (415) 293-6800
Facsimile: (415) 293-6899
George A. Zelcs
gzelcs@koreintillery.com
Randall P. Ewing, Jr.
rewing@koreintillery.com
David Walchak
dwalchak@koreintillery.com
KOREIN TILLERY, LLC
205 North Michigan, Suite 1950
Chicago, IL 60601
Telephone: (312) 641-9750
Facsimile: (312) 641-9751
Stephen M. Tillery
stillery@koreintillery.com
Steven M. Berezney
sberezney@koreintillery.com
Carol O’Keefe
cokeefe@koreintillery.com
KOREIN TILLERY, LLC
505 North 7th Street, Suite 3600
St. Louis, MO 63101
Telephone: (314) 241-4844
Facsimile: (314) 241-3525
For Defendants-Respondents:
Robert A. Van Nest
rvannest@keker.com
Dan Jackson
djackson@keker.com
Julia L. Allen
jallen@keker.com
Travis Silva
tsilva@keker.com
Anna Porto
aporto@keker.com
Luke Apfeld
lapfeld@keker.com
Amos J. B. Espeland
aespeland@keker.com
KEKER, VAN NEST & PETERS LLP

633 Battery Street
San Francisco, CA 94111-1809
Telephone: (415) 391-5400
Facsimile: (415) 397-7188
David H. Kramer
dkramer@wsgr.com
Lauren Gallo White
lwhite@wsgr.com
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: (650) 493-9300
Facsimile: (650) 565-5100
I declare under penalty of perjury that the foregoing is true. Executed this
2nd day of June, 2023, at Chatham, New York.
/s/ Philip Korologos

Philip C. Korologos
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1(a), Plaintiffs-
Petitioners state that Uniglobe Entertainment, LLC, and AST Publishing Ltd. have
no parent companies and no publicly held corporation owns 10% or more of either
company’s stock.
TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
BACKGROUND .......................................................................................................3
ARGUMENT .............................................................................................................6
I. THERE IS AT LEAST A FAIR PROSPECT THAT PLAINTIFFS’

PETITION WILL SUCCEED ON THE MERITS, AND THE
PETITION RAISES SERIOUS LEGAL QUESTIONS. ......................6
A. There Is at Least a Fair Prospect That This Court Will Conclude

That the District Court Erred in Resting Its Commonality and
Predominance Holdings on Impermissible Merits
Determinations. ...........................................................................7
B. There Is at Least a Fair Prospect That This Court Will Conclude

That the District Court Erred in Refusing to Allow Class-Wide
Adjudication of Defendants’ DMCA Safe Harbor Defense
Under Rule 23(c)(4). ................................................................. 11
C. There Is at Least a Fair Prospect That This Court Will Conclude

That the District Court Erred in Its Analysis of the Proposed
CMI Classes. .............................................................................14
II. PLAINTIFFS WILL BE IRREPARABLY INJURED IN THE

ABSENCE OF A STAY ......................................................................16
III. ISSUANCE OF A STAY WILL NOT SUBSTANTIALLY INJURE

DEFENDANTS. ..................................................................................19
IV. THE PUBLIC INTEREST FAVORS A STAY. ...................................19
CONCLUSION ........................................................................................................21
i
TABLE OF AUTHORITIES
Cases
Alvarez v. NBTY, Inc.,
2020 WL 804403 (S.D. Cal. Feb. 18, 2020).........................................................19
Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds,
568 U.S. 455 (2013) .........................................................................................8, 10
Briseno v. ConAgra Foods, Inc.,
844 F.3d 1121 (9th Cir. 2017)................................................................................9
Bristow v. Lycoming Engines,
2008 WL 2561105 (E.D. Cal. June 24, 2008) ......................................... 16, 19, 20
Brown v. Wal-Mart Stores, Inc.,
2012 WL 5818300 (N.D. Cal. Nov. 15, 2012) .....................................................20
Chamberlan v. Ford Motor Co.,
402 F.3d 952 (9th Cir. 2005) (per curiam) ............................................................7
Ewing Indus. Corp. v. Bob Wines Nursery, Inc.,
2015 WL 12979096 (M.D. Fla. Feb. 5, 2015) ......................................................17
Johnson v. Serenity Transportation, Inc.,
2018 WL 9782170 (N.D. Cal. Oct. 12, 2018) ......................................................19
Leiva-Perez v. Holder,
640 F.3d 962 (9th Cir. 2011)............................................................................6, 19
Microsoft Corp. v. Baker,
582 U.S. 23 (2017) .................................................................................................7
Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC,
31 F.4th 651 (9th Cir. 2022) (en banc) ........................................................ 7, 9, 10
Rahman v. Mott’s LLP,
693 F. App’x 578 (9th Cir. 2017) ......................................................................... 11
Russell v. Educ. Comm’n for Foreign Med. Graduates,
15 F.4th 259 (3d Cir. 2021) ........................................................................... 12, 13
Salhotra v. Simpson Strong-Tie Co., Inc.,
2022 WL 1091799 (N.D. Cal. Apr. 12, 2022) ......................................................17
ii
See Newton v. Diamond,

388 F.3d 1189 (9th Cir. 2004)...............................................................................15
Stevens v. Corelogic,
899 F.3d 666 (9th Cir. 2018) ......................................................................... 15, 16
Tasion Commc’ns, Inc. v. Ubiquiti Networks, Inc.,
308 F.R.D. 630 (N.D. Cal. 2015).........................................................................13
Tyson Foods, Inc. v. Bouaphakeo,
577 U.S. 442 (2016) ..............................................................................................7
Valentino v. Carter-Wallace, Inc.,
97 F.3d 1227 (9th Cir. 1996) .......................................................................... 11, 12
Statutes
17 U.S.C. §1202 ............................................................................................... passim
Rules
Federal Rule of Appellate Procedure 8 ......................................................................6
Federal Rule of Civil Procedure 23 ................................................................. passim
iii
INTRODUCTION
Trial in this case is set for June 12—ten days from the date of this stay
application. In October 2022, Plaintiffs moved for class certification, seeking
authority to litigate on a class-wide basis copyright and related issues with
substantial policy implications regarding the legality of the structure of the
YouTube platform. Eleven days ago, after two rounds of court-ordered briefing
and only three weeks before trial, the district court denied Plaintiffs’ Rule 23
motion. Plaintiffs promptly filed a Rule 23(f) Petition (the “Petition”) setting forth
three independent bases why this ruling was manifestly erroneous and
interlocutory appeal was warranted. As set forth below and in more detail in the
Petition, there is at least a fair prospect that Plaintiffs will succeed on the merits on
the fundamental Rule 23 issues they seek to raise on appeal.
First, the district court’s certification decision wrongly rested on premature
merits determinations. The district court itself weighed the sufficiency of
Plaintiffs’ proposed classwide evidence of copyright ownership and infringement,
and decided it did not suffice to prove ownership and infringement on the merits,
even though a prima facie showing of ownership and infringement is all this
Court’s caselaw requires. Second, the district court also erroneously refused to
certify a Rule 23(c)(4) class that would allow resolution of a central issue in the
case involving undisputedly common fact questions concerning YouTube’s
1
qualification for the safe harbor in the Digital Millennium Copyright Act. This is
an issue that will not only materially advance resolution of this litigation, but also
has substantial policy implications, and the issue would otherwise evade judicial
review due to Defendants’ demonstrated litigation tactics. Third, separate from
Plaintiffs’ proposed infringement classes, the district court also badly erred in
denying certification of Plaintiffs’ proposed classes on their 17 U.S.C. §1202
claims by mistakenly determining that Plaintiff Maria Schneider was not a member
of a class to which she indisputably belongs and by misinterpreting this Circuit’s
precedent on §1202.
Faced with these serious appellate issues and with trial just days away,
Plaintiffs sought a stay of the proceedings below while this Court reviewed their
Rule 23(f) Petition. The district court summarily denied this application, telling
Plaintiffs, “It’s showtime.”
Under these circumstances, the Court should stay this case so it may address
the fundamental issues presented in the Petition before any trial proceeds. Such a
stay will ensure that Plaintiffs are not irreparably harmed by being forced to try a
case that (i) will be enormously wasteful and costly to try on an individual basis,
while there are, at a minimum, serious reasons to believe a class should have been
certified; (ii) will not achieve the important relief that Plaintiffs’ class claims target,
in light of Defendants’ gamesmanship and the district court’s denial of issues class
2
certification; and (iii) could prevent the class claims from ever being tried, even if
the district court’s certification order is reversed on appeal. A stay will preserve
the status of the parties’ litigation positions while not prejudicing Defendants.
BACKGROUND
Plaintiffs are 7-time GRAMMY award-winning jazz musician Maria
Schneider, filmmaker Uniglobe Entertainment, LLC, and Russian audiobook
company AST Publishing Ltd. Plaintiffs bring claims against YouTube, LLC and
Google LLC for (i) copyright infringement due to the persistent unauthorized
upload and display of Plaintiffs’ copyrighted works on the YouTube platform and
(ii) violations of 17 U.S.C. §1202 due to their knowing display of videos on
YouTube from which YouTube or uploaders to YouTube have removed copyright
management information (“CMI”) metadata.
Since the original complaint was filed on July 2, 2020, Dkt. 1, Plaintiffs
have sought to litigate their claims as a class action. Pursuant to the district court’s
July 14, 2022, scheduling order, Dkt. 155, Plaintiffs filed their original motion for
class certification on October 17, 2022, seeking certification of four proposed
classes. Dkt. 190. The motion was fully briefed on November 28, 2022. Dkt. 203.
However, at the December 15, 2022, hearing, the district court terminated the
motion without prejudice, Dkt. 213, stating that “[i]t just doesn’t make any sense to
me to do class cert” because the parties’ expert disclosures were still outstanding
3
and the court had not yet released its order on Defendants’ summary judgment
motion. Dkt. 214 at 3:13–4:15.
In compliance with the district court’s requirement of revised class
certification briefing, Dkt. 213, Plaintiffs filed a new motion for class certification
on February 13, 2023. Dkt. 245. The revised motion was fully briefed on
March 13, 2023, Dkt. 272, and the district court heard argument April 13, 2023,
Dkt. 307.
On May 4, 2023, while Plaintiffs’ motion was still under consideration,
Defendants informed Plaintiffs they would seek to withdraw their DMCA safe
harbor affirmative defense should no class be certified for Plaintiffs’ infringement
claims. Dkt. 309-2. This prompted Plaintiffs to file immediately an administrative
motion for further argument or supplemental briefing on class certification on May
5, 2023, arguing that Defendants’ newly disclosed position demonstrated why—at
a minimum—the district court should certify an issues class under Rule 23(c)(4) to
allow adjudication of the undisputedly common, and undisputedly central, issue of
whether YouTube had the right to invoke the DMCA to insulate itself from liability
for copyright infringement on the platform. Dkt. 309. Plaintiffs argued that
Defendants’ tactics sought to preclude plaintiffs from ever being able to litigate the
merits of the DMCA safe harbor defense, thus allowing Defendants to continue
4
with their challenged practices while evading judicial review and preclusion
principles. Id.
On May 22, 2023, without addressing Plaintiffs’ administrative motion, the
district court issued an order denying certification of any of Plaintiffs’ proposed
classes. Dkt. 330. Three days later, at a May 25, 2023, pretrial conference, the
district court granted Defendants’ request to withdraw their affirmative defense
over Plaintiffs’ strong objection. 5/25/2023 Hrg. Tr. at 17:11–21:4.
Although Plaintiffs had originally moved for class certification in October
2022, the class certification decision came only three weeks before the scheduled
trial date of June 12, 2023. Intending to file a Rule 23(f) petition seeking review of
the decision, Plaintiffs on May 25, 2023, sought a stay of trial proceedings pending
this Court’s review of the petition and subsequent appeal. Id. at 21:9–13. The
district court summarily denied Plaintiffs’ stay application, stating, “I’m not going
to do that. You got a trial set on June 12th. This is a 2020 case; okay. It’s
showtime.” Id. at 21:14–15.
On June 2, 2023, Plaintiffs filed their Rule 23(f) petition, detailing numerous
reasons why the Court should grant review and reverse the district court’s denial of
class certification. That same day, Plaintiffs filed this motion. Unless the Court
now intervenes, Plaintiffs will be forced to proceed to a costly and unnecessary
trial on July 12 that will impose substantial irreparable harm.
5
ARGUMENT
A Rule 23(f) petition for interlocutory appeal of a class certification order
“does not stay proceedings in the district court unless the district judge or the court
of appeals so orders.” Fed. R. Civ. P. 23(f). A party is entitled to move for a stay
in the court of appeals provided that it has first sought a stay in in the district court,
and the “district court denied the motion or failed to afford the relief requested.”
Fed. R. App. 8(a)(2)(A)(ii). Here, as discussed above and in Plaintiffs’ Circuit
Rule 27-3 Certificate, the district court summarily refused to grant a stay to allow
this Court to review Plaintiffs’ 23(f) petition prior to the June 12 trial date. As a
result, Plaintiffs have been forced to file this motion. To prevail on their motion to
stay, Plaintiffs must show that (1) there is a “fair prospect” that the appeal will
succeed on the merits and/or the appeal raises “serious legal questions”; (2) they
will be “irreparably injured” in the absence of a stay; (3) issuance of a stay will not
“substantially injure[]” Defendants; and (4) the stay is in the public interest. Leiva-
Perez v. Holder, 640 F.3d 962, 964–70 (9th Cir. 2011). Each of these factors
weighs heavily in favor of a stay here.
I. THERE IS AT LEAST A FAIR PROSPECT THAT PLAINTIFFS’

PETITION WILL SUCCEED ON THE MERITS, AND THE
PETITION RAISES SERIOUS LEGAL QUESTIONS.
Although a court of appeals may grant Rule 23(f) review of a class
certification “on the basis of any consideration,” Microsoft Corp. v. Baker, 582
6
U.S. 23, 32–33 (2017), this Court has recognized three circumstances as “most
appropriate” for Rule 23(f) review. Chamberlan v. Ford Motor Co., 402 F.3d 952,
959 (9th Cir. 2005) (per curiam). As explained below, and in more detail in
Plaintiffs’ Rule 23(f) petition, all three circumstances are present in this case: the
district court’s eleventh hour class certification ruling was “manifestly erroneous”
in multiple respects; hinges on certain “fundamental issue[s] of law relating to
class actions” that may otherwise evade review; and has left Plaintiffs in a position
where they face going to trial (in a matter of days) on a small number of individual
claims regardless of whether they “justify the expense of the litigation.” Id. at
958–59.
A. There Is at Least a Fair Prospect That This Court Will Conclude

That the District Court Erred in Resting Its Commonality and
Predominance Holdings on Impermissible Merits Determinations.
To satisfy Rule 23’s commonality requirement, plaintiffs must identify at
least one “common question . . . capable of classwide resolution.” Olean
Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 663 (9th
Cir. 2022) (en banc). “A common question,” the Supreme Court has explained, “is
one where the same evidence will suffice for each member to make a prima facie
showing or the issue is susceptible to generalized, class-wide proof.” Tyson Foods,
Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (cleaned up).
7
Here, Plaintiffs propose to make the required prima facie showing of
ownership and infringement with common evidence that includes sworn DMCA
takedown notices and the federal copyright registry. The district court dismissed
such evidence as insufficient, selectively mining the record and badly
misconstruing Plaintiffs’ proposed evidence. The Supreme Court has cautioned
that “Rule 23 grants courts no license to engage in free-ranging merits inquiries at
the certification stage.” Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568
U.S. 455, 466 (2013). “Merits questions may be considered to the extent—but
only to the extent—that they are relevant to determining whether the Rule 23
prerequisites for class certification are satisfied.” Id. In its analysis of common
issues, the district court crossed this line and resolved questions properly reserved
for the jury. This error also infected the district court’s preponderance analysis,
which necessarily turned on its failure to test Plaintiffs’ common proof against the
proper Rule 23 standard.
1. Ownership
Plaintiffs’ motion for class certification described how prima facie evidence
of copyright ownership could be established on a classwide basis through sworn
DMCA takedown notices that identify copyright owners, which would be “further
substantiate[d]” by “cross-referencing successful Takedown Notices against the
U.S. Copyright Office’s database of copyright registrations.” Dkt. 245 at 10. The
8
district court rejected this proposed evidence, asserting that it was “miles away
from substantive proof of copyright ownership.” Order at 13 (emphasis added).
But, “In determining whether the ‘common question’ prerequisite is met, a district
court is limited to resolving whether the evidence establishes that a common
question is capable of class-wide resolution, not whether the evidence in fact
establishes that plaintiffs would win at trial.” Olean, 31 F.4th at 666–67.
Applying the proper prima facie showing standard, Plaintiffs met their
burden. This Circuit has squarely held that sworn declarations of ownership like
takedown notices are sufficient prima facie classwide evidence, and challenges to
such sworn statements do not bar certification. Briseno v. ConAgra Foods, Inc.,
844 F.3d 1121, 1131–33 (9th Cir. 2017). The takedown notices are sworn
statements of ownership under penalty of perjury and the district court was
obligated under this Circuit’s law to accept them as sufficient classwide evidence.
Petition at 7–9.
Even if the takedown notices were not independently sufficient, the district
court wholly ignored Plaintiffs’ plan to “further substantiate” ownership using
copyright databases. Dkt. 245 at 10; Dkt. 272 at 4–5. The federal copyright
database, which the district court did not discuss in its Order, is presumptive
evidence of ownership under the law of this Circuit and the district court was
obliged to accept it, too, as sufficient classwide evidence. Petition at 10.
9
2. Infringement
The district court also erred in rejecting Plaintiffs’ proposal to establish
infringement on a classwide basis using successful takedown notices that went
through YouTube’s rigorous vetting process. Petition at 10–12; Dkt. 245 at 8–10,
19–20. The district court all but conceded as much. Petition at 11. But it then
undertook its own review of the record to conclude that on the weight of the
evidence the takedown notices were just “doubtful sources of classwide proof.”
Order at 17 (emphasis added). The district court’s failure to limit its role to testing
the sufficiency of Plaintiff’s prima facie evidence improperly supplanted the role
of the jury. Petition at 12. In weighing the evidence, the district court also made
basic errors in ignoring sworn testimony explaining just how rigorous YouTube’s
takedown review procedures are. Such errors are classic examples of why courts
must not “‘put the cart before the horse’ by requiring plaintiffs to show at
certification that they will prevail on the merits.” Olean, 31 F.4th at 667 (quoting
Amgen, 568 U.S. at 460)).
***
For all these reasons and the reasons set forth more fully in Plaintiffs’
Petition, the district court’s commonality ruling, which also formed the basis for its
predominance ruling under Rule 23(b)(3), was manifest error. There is more than a
“fair prospect” that this Court will vacate the district court’s Order on this ground.
10
B. There Is at Least a Fair Prospect That This Court Will Conclude

That the District Court Erred in Refusing to Allow Class-Wide
Adjudication of Defendants’ DMCA Safe Harbor Defense Under
Rule 23(c)(4).
Independent of erroneously refusing to certify Rule 23(b)(3) infringement
classes, the district court erred in summarily refusing to apply Rule 23(c)(4) to
allow classwide resolution of the undisputedly common—and centrally
consequential—issue of whether the YouTube platform qualifies for, and satisfies,
the safe harbor in the DMCA. Valentino v. Carter-Wallace, Inc., 97 F.3d 1227,
1234 (9th Cir. 1996) (“Even if the common questions do not predominate over the
individual questions so that class certification of the entire action is warranted,
Rule 23[(c)(4)] authorizes the district court in appropriate cases to isolate the
common issues . . . and proceed with class treatment of these particular issues.”).
Application of Rule 23(c)(4) is paradigmatically appropriate here. Petition
at 14. Whether YouTube can rely on its existing copyright enforcement system to
insulate its conduct from copyright liability under the DMCA safe harbor has been
a central issue in this case from the start. Dkt. 99 ¶ 12. Moreover, Defendants
concede that the questions necessary to resolve this defense are common across the
class. Dkt. 268 at 17 n.11. And there can be no serious question that resolving an
issue of this kind of obvious importance will “materially advance[] the disposition
of the litigation as a whole.” Rahman v. Mott’s LLP, 693 F. App’x 578, 579 (9th
Cir. 2017) (unpublished).

11
Defendants’ late-revealed litigation tactics confirmed that classwide
resolution of Defendants’ DMCA defense is superior to individualized actions,
furthers judicial economy, and materially advances the litigation in an efficient and
fair manner. See Valentino, 97 F.3d at 1229. Once the district court denied class
certification, Defendants, over Plaintiffs’ objections but with the district court’s
permission, withdrew their nearly three-year old DMCA defense. Dkt. 309.
Defendants thus sought to evade review of their DMCA safe harbor protections
and ensure that if the putative class members were forced to litigate individual
actions, they would each face the prospect of developing evidence to defeat the
DMCA safe harbor defense all over again—as opposed to benefitting from the
issue preclusive effect of a judgment here. Petition at 17–18. Worse still,
Defendants’ tactics show that if an individual plaintiff ever manages to develop the
evidence to defeat the safe harbor defense, they will withdraw the defense and face
the risk of relatively small-dollar individual infringement judgements, instead of a
preclusive judgment on whether it satisfies the requirements for safe harbor
protection. This is precisely the circumstance where issues class certification is
appropriate. See Russell v. Educ. Comm’n for Foreign Med. Graduates, 15 F.4th
259, 268 (3d Cir. 2021) (in deciding whether to certify an issues class, a court
should consider “the potential preclusive effect or lack thereof that resolution of
the proposed issue class will have” and “the impact individual proceedings may
12
have upon one another, including whether remedies are indivisible such that
granting or not granting relief to any claimant as a practical matter determines the
claims of others”); id. (courts should consider “the efficiencies to be gained by
granting partial certification in light of realistic procedural alternatives” when
deciding whether to certify an issues class); Tasion Commc’ns, Inc. v. Ubiquiti
Networks, Inc., 308 F.R.D. 630, 640 (N.D. Cal. 2015) (Rule 23(c)(4) class may be
appropriate “where vindication of important public policy interests (as embodied,
for instance, in a statute) may be jeopardized in the absence of class certification”).
The district court failed seriously to consider Plaintiffs’ request for
certification of an issues class under Rule 23(c)(4). Order at 25. Indeed, the Order
did not even mention Defendants’ decision to withdraw the DMCA defense if no
class were certified or the effect that would have on the litigation—despite a
submission from Plaintiffs addressing precisely this issue filed as soon as
Defendants revealed their tactics. Dkt. 309; Petition at 18–19.
Independent of the Rule 23(b)(3) errors appealed, there is more than a “fair
prospect” that the Court will vacate the district court’s issues class ruling on this
record.
13
C. There Is at Least a Fair Prospect That This Court Will Conclude

That the District Court Erred in Its Analysis of the Proposed CMI
Classes.
In addition to their copyright infringement claims, Plaintiffs bring claims for
violations of Section 1202(b) of the Copyright Act arising out of YouTube’s
knowing and undisputed display of videos on its platform without copyright
management information (“CMI”)—including International Standard Recording
Code (“ISRC”) metadata—that it removes or uploaders to YouTube remove from
every upload containing a sound recording of a musical work. Dkt. 247-22. The
district court further erred in denying certification of Plaintiffs’ two proposed
classes on these claims.
First, the district court duplicated its error with respect to common evidence
of copyright ownership in analyzing Plaintiffs’ CMI classes, once again deciding
that evidence from sworn takedown notices and copyright databases is insufficient
prima facie evidence. See Section A.1., supra. To the extent that error requires
review and reversal with respect to the infringement classes, it will require review
and reversal for its Order denying certification of the CMI classes.
Second, the district court made a straightforward mistake in finding
Ms. Schneider was not a member of the ISRC class, which is defined as “persons
who own copyrights in one or more digital form sound recordings of musical
works”. Dkt. 245 at 3. In discovery, Ms. Schneider identified numerous sound
14
recordings she owned from which ISRCs had been removed. While these sound
recordings were not registered, contrary to the district court’s analysis, the lack of
registration does not affect Ms. Schneider’s copyright ownership of these
recordings,1 and neither the ISRC Class nor §1202 liability is limited to registered
works. Petition at 20–21.
Third, the district court also misinterpreted the scienter requirements for
§1202(b) claims set forth in Stevens v. Corelogic, 899 F.3d 666 (9th Cir. 2018).
Order at 21–23. The district court read Stevens to require a showing that each class
member used CMI metadata to prevent or detect copyright infringement. But
nothing in Section 1202 turns on Plaintiffs’ conduct as opposed to that of
Defendants, and analysis of the plaintiffs’ practices was only necessary in Stevens
because there was no direct evidence that the defendant knew infringement would
result from its removal of CMI. Id. at 676 (“Photographers have not put
forward any evidence that CoreLogic knew” of a risk of infringement.). By
contrast, here, Defendants’ pattern of conduct shows their own understanding of
1
For all of Ms. Schneider’s works at issue, Ms. Schneider created and distributed a
sound recording based on a music composition she wrote. She therefore owns a
copyright in both the composition and the recording. See Newton v. Diamond, 388
F.3d 1189, 1191 (9th Cir. 2004) (“Sound recordings and their underlying
compositions are separate works with their own distinct copyrights.”). Although in
many instances Ms. Schneider registered her copyright in the underlying
composition and not the sound recording, she still owns a copyright in the sound
recording itself.
15
the importance of ISRCs in managing and policing copyrights. Such classwide
proof is sufficient prima facie evidence of scienter under Section 1202 to show (at
a minimum) that Defendants understood that stripping CMI would facilitate and
conceal infringement. Petition at 22–23. Were it otherwise, as the district court
itself acknowledged, Stevens would mean “you can never have a CMI class.” Dkt.
325 at 43:15–18. There is more than a “fair prospect” that this Court will reject
this radical and unsupported rule on appeal.
II. PLAINTIFFS WILL BE IRREPARABLY INJURED IN THE

ABSENCE OF A STAY
Absent a stay, Plaintiffs will be forced to consume substantial resources
trying a case that cannot achieve the important relief their class claims target, with
the prospect that victory on their individual claims will perversely call into a
question whether the class claims will ever be tried, even if the district court’s
certification order is reversed on appeal.
It is axiomatic that it would “be a tremendous injury to plaintiffs to reach the
trial or post-trial stage on their individual claims, only then to win the relief they
seek in the Circuit Court” through reversal of an order denying certification of a
class. Bristow v. Lycoming Engines, 2008 WL 2561105, at *2–3 (E.D. Cal. June
24, 2008). For example, “if the Court were reversed on appeal, both parties would
suffer irreparable harm in spending substantial time and resources on litigation”.
Salhotra v. Simpson Strong-Tie Co., Inc., 2022 WL 1091799 (N.D. Cal. Apr. 12,
16
2022); Ewing Indus. Corp. v. Bob Wines Nursery, Inc., 2015 WL 12979096, at *3
(M.D. Fla. Feb. 5, 2015) (“wasteful, unrecoverable, and possibly duplicative costs
are proper considerations” in considering stays pending Rule 23(f) petitions).
These considerations, and more, apply here. To start, if the Court reverses
the district court’s denial of certification, the class claims will then need to be tried
separately from the individual plaintiffs’ claims, resulting in Plaintiffs incurring
costs associated with duplicative trials. Moreover, if Plaintiffs are forced to
proceed to trial on an individual basis on June 12, their claims in this litigation will
be finally decided. At that point, even if the Court reverses the district court’s
denial of class certification and even if Plaintiffs have prevailed at trial, the
putative Class will perversely face the prospect that the class representatives may
no longer be viable plaintiffs. This would mean redoing discovery with respect to
plaintiffs in a new action—discovery which here took several years at significant
expense. The Class should not be forced into a situation where an appellate victory
would be illusory, placing them back at square one, and the fruits of three years of
hard-fought litigation evaporate even when the district court’s failure to certify a
class has been confirmed as erroneous.
Forcing Plaintiffs to proceed to trial now on an individualized basis also
gravely undermines a principal purpose of this lawsuit. The named Plaintiffs here
joined the case to litigate class claims, and to vindicate their view that YouTube
17
tramples on the rights of independent artists and smaller copyright holders overall,
not just those of the individual Plaintiffs. As Plaintiff Schneider has made plain
(including in congressional testimony long before this lawsuit), she believes the
YouTube platform unfairly and unlawfully permits rampant infringement against
less powerful artists like herself. Through this lawsuit, she and the other Plaintiffs
are pursuing the kind of classwide claims that could address such issues.
In particular, a core aspect of this litigation involves showing that YouTube
cannot continue to hide behind the DMCA safe harbor defense to insulate itself
from any consequences for the infringement on its platform. As a class case, this
issue would be decided, either by the district court or the jury, in a judgment that
would have preclusive effect. But, conditioned upon and after denial of class
certification, Defendants sought permission to withdraw their DMCA defense.
Dkt. 309. Over Plaintiffs’ objection, the district court summarily granted this
relief. 5/25/2023 Hrg. Tr. at 17:11–21:4. Whatever the merits of this decision, its
consequences are clear: in light of a class certification ruling that Plaintiffs
respectfully submit is manifestly erroneous on multiple grounds, the individual
Plaintiffs now face having to try a case that will not result in at least some of the
important relief they have been trying to achieve in this suit—a preclusive, final
judgment on whether YouTube qualifies for the DMCA safe harbor. For this
reason too, a stay is required to avoid significant irreparable harm.
18
III. ISSUANCE OF A STAY WILL NOT SUBSTANTIALLY INJURE

DEFENDANTS.
Defendants will not be “substantially injure[d]” by a stay. Leiva-Perez, 640
F.3d at 964. A stay would result in only a minor delay in the context of litigation
that has been pending for years. Such a delay does not constitute substantial injury
to defendants. See, e.g., Alvarez v. NBTY, Inc., 2020 WL 804403, at *2 (S.D. Cal.
Feb. 18, 2020) (“the Court finds no harm to Defendant in temporarily staying the
case”); Bristow, 2008 WL 2561105, at *2–3 (“there appears no harm to defendants
in granting the stay”); Johnson v. Serenity Transportation, Inc., 2018 WL 9782170,
at *4 (N.D. Cal. Oct. 12, 2018) (“Simply put, a brief stay pending disposition of
the petition will not unduly delay these proceedings or harm the SCI
Defendants.”). If the Court ultimately denies Plaintiffs’ petition, the parties can
press forward to a new trial date for the individual claims. And if the Court finds
the Petition meritorious, Defendants cannot claim to have been prejudiced by the
delay necessary to resolve an appeal arising from issues for which there is, at a
minimum, a fair prospect that the district court erred, especially given they had
previously requested a trial date of August 21, 2023, or “the earliest available date
thereafter.” Dkt. 220 at 3.
IV. THE PUBLIC INTEREST FAVORS A STAY.
Courts recognize that stays can further the “public interest” in “accuracy of
judicial proceedings” and “in efficient use of government resources,” Bristow,
19
2008 WL 2561105, at *3, including “by preventing potentially wasteful work part
on the part of the [district] court and the parties while [this Court] considers” the
Petition. Brown v. Wal-Mart Stores, Inc., 2012 WL 5818300, at *5 (N.D. Cal. Nov.
15, 2012).
Absent a stay, trial in this case begins in a little over a week. There is little
doubt that if the class certification ruling is ultimately vacated, retrial, and the
associated use of government resources, will be necessary.
Public interest considerations apply with special force here where the
putative class claims put at issue whether YouTube has the right to invoke the
DMCA safe harbor defense to insulate itself from the consequences of alleged
rampant infringement on its platform. This is an issue of great import to small
copyright holders across the United States and around the world. Whether and to
what extent the YouTube platform can be held liable for copyright infringement is
something with substantial public policy implications. As discussed above, given
YouTube’s refusal to allow this issue to be adjudicated at the June 12 trial
involving only the individual plaintiffs, a stay will allow this Court to review
Plaintiffs’ petition without letting Defendants evade review of this important issue
through their litigation tactics.
At the very least, if certification is reversed or vacated after trial, this case
will likely be seriously derailed, leading to further delays in this already protracted
20
litigation. Meanwhile, Defendants’ facilitation of infringement will continue
unabated. A brief stay here to allow this Court to resolve Plaintiffs’ Rule 23(f)
Petition will ensure that the district court’s last-minute, haphazard, and erroneous
conclusion that this case cannot be tried on a classwide basis does not endanger the
progress of this litigation.
CONCLUSION
The Court should stay proceedings in the district court pending this Court’s
resolution of Plaintiffs’ Rule 23(f) Petition and any resulting appeal.
21
Respectfully submitted,
Dated: June 2, 2023 /s/ Philip C. Korologos
George A. Zelcs Philip C. Korologos

gzelcs@koreintillery.com pkorologos@bsfllp.com
Randall P. Ewing, Jr. Eric J. Brenner
rewing@koreintillery.com ebrenner@bsfllp.com
David Walchak Jeffrey Waldron
dwalchak@koreintillery.com jwaldron@bsfllp.com
KOREIN TILLERY, LLC BOIES SCHILLER FLEXNER LLP
205 North Michigan, Suite 1950 55 Hudson Yards, 20th Floor
Chicago, IL 60601 New York, NY 10001
Telephone: (312) 641-9750 Telephone: (212) 446-2300
Facsimile: (312) 641-9751 Facsimile: (212) 446-2350
Stephen M. Tillery Joshua Irwin Schiller

stillery@koreintillery.com jischiller@bsfllp.com
Carol O’Keefe BOIES SCHILLER FLEXNER LLP
cokeefe@koreintillery.com 44 Montgomery St., 41st Floor
KOREIN TILLERY, LLC San Francisco, CA 94104
505 North 7th Street, Suite 3600 Telephone: (415) 293-6800
St. Louis, MO 63101 Facsimile: (415) 293-6899
Telephone: (314) 241-4844
Facsimile: (314) 241-3525
Counsel for Plaintiffs -Petitioners
22
ADDENDUM
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
Form 15. Certificate of Service for Electronic Filing
Instructionsfor this form: ht(v:l/www.ca9.uscourts.gov{forms{form15instructions.pdf
9th Cir. Case Number(s) l.___2_3________________

-
80049 _ __,
I hereby certify that I electronically filed the foregoing/attached document(s) on

this date with the Clerk of the Court for the United States Court of Appeals for the
Ninth Circuit using the Appellate Electronic Filing system.
Service on Case Participants Who Are Registered for Electronic Filing:

I certify that I served the foregoing/attached document(s) via email to all
registered case participants on this date because it is a sealed filing or is
�
x submitted as an original petition or other original proceeding and therefore
cannot be served via the Appellate Electronic Filing system.
Service on Case Participants Who Are NOT Registered for Electronic Filing:
I certify that I served the foregoing/attached document(s) on this date by hand
delivery, mail, third party commercial carrier for delivery within 3 calendar
D days, or, having obtained prior consent, by email to the following unregistered
case participants (list each name and mailing/email address):
Description of Document(s) (required for all documents):

Plaintiffs-Petitioners' Emergency Motion for a Stay Pending Resolution of
Their Rule 23(f) Petition
Signature I s/Philip Korologos Date !June 2, 2023

(use "s/[typed name]" to sign electronically-filed documents)
Feedback or questions about this form? Email us at forms@ca9.uscourts.gov
Form 15 Rev. 12/01/2018

Schneider v. YouTube

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Case: 23-80049, 06/05/2023, ID: 12728359, DktEntry: 2, Page 1 of 89

EMERGENCY MOTION UNDER CIRCUIT RULE 27-3

MARIA SCHNEIDER, UNIGLOBE ENTERTAINMENT, LLC, AND AST

On Petition for Permission to Appeal from the

PLAINTIFFS-PETITIONERS’ EMERGENCY MOTION FOR A STAY

Philip C. Korologos George A. Zelcs

EMERGENCY MOTION UNDER CIRCUIT RULE 27-3

Joshua Irwin Schiller Stephen M. Tillery

Counsel for Plaintiffs-Petitioners

CIRCUIT RULE 27-3 CERTIFICATE

Pursuant to Ninth Circuit Rule 27-3, I hereby certify the following

certificate is a stay of proceedings in the district court pending resolution of their

begin in this case.

The Existence and Nature of the Emergency

proceed on a class basis.

be tried in a separate proceeding, resulting in Plaintiffs incurring substantial costs

associated with duplicative trials.

longer viable class representatives.

Finally, forcing Plaintiffs to proceed with trial on June 12 would frustrate

one of Plaintiffs’ principal purposes in bringing this case—challenging Defendants’

deal to us.” Dkt. 195 at 48:11–16.

Nonetheless, before the district decided Plaintiffs’ class certification motion,

17:11–21:4. Thus, now, following a class certification ruling that Plaintiffs

respectfully submit is manifestly erroneous on multiple grounds, the individual

litigation—a preclusive, final judgment on whether YouTube qualifies for the

whether Defendants’ DMCA safe harbor defense is viable.

Plaintiffs’ Timely Efforts to Request a Stay

At the scheduled pretrial conference on May 25, 2023, Plaintiffs informed

fine.” Id. at 21:16–19.

email on June 2, 2023.

office addresses of the attorneys for the parties.

Joshua Irwin Schiller

KEKER, VAN NEST & PETERS LLP

2nd day of June, 2023, at Chatham, New York.

/s/ Philip Korologos

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1(a), Plaintiffs-

I. THERE IS AT LEAST A FAIR PROSPECT THAT PLAINTIFFS’

A. There Is at Least a Fair Prospect That This Court Will Conclude

B. There Is at Least a Fair Prospect That This Court Will Conclude

C. There Is at Least a Fair Prospect That This Court Will Conclude

II. PLAINTIFFS WILL BE IRREPARABLY INJURED IN THE

III. ISSUANCE OF A STAY WILL NOT SUBSTANTIALLY INJURE

IV. THE PUBLIC INTEREST FAVORS A STAY. ...................................19

See Newton v. Diamond,

application. In October 2022, Plaintiffs moved for class certification, seeking

authority to litigate on a class-wide basis copyright and related issues with

substantial policy implications regarding the legality of the structure of the

the fundamental Rule 23 issues they seek to raise on appeal.

First, the district court’s certification decision wrongly rested on premature

merits determinations. The district court itself weighed the sufficiency of

Plaintiffs’ proposed classwide evidence of copyright ownership and infringement,

case involving undisputedly common fact questions concerning YouTube’s

review due to Defendants’ demonstrated litigation tactics. Third, separate from

denying certification of Plaintiffs’ proposed classes on their 17 U.S.C. §1202

of a class to which she indisputably belongs and by misinterpreting this Circuit’s

Plaintiffs, “It’s showtime.”

Plaintiffs are 7-time GRAMMY award-winning jazz musician Maria

Schneider, filmmaker Uniglobe Entertainment, LLC, and Russian audiobook

(ii) violations of 17 U.S.C. §1202 due to their knowing display of videos on

YouTube from which YouTube or uploaders to YouTube have removed copyright

management information (“CMI”) metadata.

class certification on October 17, 2022, seeking certification of four proposed

motion. Dkt. 214 at 3:13–4:15.