Last year, Grammy award-winning musician Maria Schneider teamed up with an unknown entity called Pirate Monitor to file a class action lawsuit against YouTube. Both alleged mass infringement of their copyright works and serious deficiencies in YouTube’s copyright enforcement measures.
As reported earlier this week, YouTube is insisting that Schneider positively identify actual infringements on the platform so it can mount a defense. However, the musician’s lawyers say that to identify the full scale of infringement on the platform, Schneider would need access to YouTube’s Content ID system – something YouTube refuses to grant, a matter that lies at the core of Schneider’s complaint.
The Shadowy Pirate Monitor
From the very first day the class action lawsuit was filed, questions were raised – not about Schneider herself – but the decision to team up with an entity known only as Pirate Monitor. In-depth searches online revealed nothing to explain who or what lay behind this ‘company’ but as the lawsuit progressed, information came to light that suggested something was amiss. And in September 2020, via a counterclaim, YouTube dropped the bombshell.
According to YouTube’s research, the only ‘piracy’ being suffered by Pirate Monitor on the video platform was entirely of its own making. YouTube said that while Pirate Monitor’s lawsuit claimed that YouTube users were infringing its copyrights by uploading and sharing its content, Pirate Monitor and its proxies had uploaded their own movie clips to YouTube and then filed takedown notices to have that content removed.
“Through agents using pseudonyms to hide their identities, Pirate Monitor uploaded some two thousand videos to YouTube, each time representing that the content did not infringe anyone’s copyright. Shortly thereafter, Pirate Monitor invoked the notice-and-takedown provisions of the Digital Millennium Copyright Act to demand that YouTube remove the same videos its agents had just uploaded,” YouTube explained.
With seemingly devastating evidence in hand, YouTube went further still in February this year, naming Hungarian film director and California resident Gábor Csupó (who previously worked on The Simpsons, Rugrats, Duckman, Stressed Eric, and Aaahh!!! Real Monsters) as the person presiding over Pirate Monitor. Or, as YouTube described it, an “inadequately capitalized shell corporation” that “disregards corporate formalities”.
With Csupó having been identified and then held personally liable by YouTube for the DMCA “fraud” being committed against the Google-owned platform, Pirate Monitor decided to voluntarily dismiss its case against YouTube last month, leaving Schneider to go it alone.
Perhaps unfortunately for Csupó, YouTube is nowhere near finished and doesn’t intend to let this lie.
Court Should Address Pirate Monitor’s Discovery Obligations
In a motion to compel filed this week, YouTube informed the court that the parties had met by telephone five times and conferred through a dozen letters between November 2020 and February 2021 regarding Pirate Monitor’s objections and responses to YouTube’s counterclaim discovery requests. To date, however, Pirate Monitor has not produced a single document.
“Pirate Monitor filed this copyright infringement case together with Maria Schneider on behalf of a putative class in July 2020. After admitting that it did not actually own at least one of the three copyrights that it had asserted in the case, and after YouTube showed that Pirate Monitor had engineered a wide-ranging fraud, Pirate Monitor dismissed its affirmative case with prejudice on March 8, 2021,” YouTube’s motion reads.
“YouTube, however, still has counterclaims against Pirate Monitor and its sole stockholder, Gábor Csupó. YouTube charges them with the mass transmission of bogus DMCA takedown notices as part of a scheme to obtain access to YouTube’s proprietary copyright management tools.”
YouTube says it is seeking in excess of $20,000 in investigative and remediation expenses, mandatory costs and attorney’s fees, punitive damages, and an injunction to prevent further abuse by Pirate Monitor. However, in order to compile those claims, it needs Pirate Monitor to comply with its discovery demands.
They require Pirate Monitor to provide information on Csupó and his alter egos including Pirate Monitor LLC, a supposed corporate entity that YouTube says simply does not exist.
Homing in On Pirate Monitor’s Agents and Upload Authority
In earlier filings, YouTube alleged that Csupó had hired foreign nationals in Pakistan to upload content to YouTube (content that was later taken down using the DMCA), thereby masking his own involvement in the scheme. YouTube wants Pirate Monitor and Csupó to provide documents that reveal their employees and agents, and the communications that were carried out between them. Thus far, nothing has been handed over.
YouTube also demands access to documents relating to Pirate Monitor’s authority to upload videos to YouTube, since this is key to determining whether Pirate Monitor’s videos infringed copyright. According to YouTube, Pirate Monitor can’t make up its mind, stating at various points that they did and then did not infringe copyright.
Pirate Monitor’s Discovery Shenanigans
YouTube notes that despite filing the original lawsuit, Pirate Monitor is yet to produce a single document in support of it. After YouTube notified the entity that it intended to file this motion, Pirate Monitor said that some sort of production would begin this week but according to YouTube, even that is subject to “all manner of impenetrable caveats and limitations.”
For example, Pirate Monitor says it is only obliged to hand over documents that were created while Csupó was acting as its agent but that covers the period post-January 2020 and the conduct underlying YouTube’s counterclaims took place before that. Even then, Pirate Monitor says that it will only hand over information that pre-dates Csupó’s interest in the entity provided it exists “in the documents we collected.”
Further muddying the waters is the claim from Pirate Monitor that while there may be documents to hand over in period before Csupó’s custody, the entity doesn’t know of any other “potential custodians” beyond Csupó and one other agent that worked for the ‘company’ in a limited capacity,
“Because of statements like these, even after six months and a dozen calls and letters, YouTube has no idea what Pirate Monitor will be producing, assuming its production ever commences,” YouTube informs the court.
Pirate Monitor: Discovery Would Incur Disproportionate Costs
In an effort to stave off the discovery demands, Pirate Monitor reportedly informed YouTube that the costs would be disproportionate, between $100,000 and $500,000 based on the collection of evidence from ten ‘custodians’. YouTube says that this cannot be the case, since Pirate Monitor itself has stated that it only has one, possibly two custodians. After YouTube pointed this out, Pirate Monitor put forth a revised amount of $55,900 but did not address the clear discrepancies in its accounts.
“YouTube has no idea where or how Pirate Monitor keeps its documents, but a targeted and reasonable collection of the categories of documents YouTube seeks should not cost close to what Pirate Monitor imagines,” the company writes.
It’s perhaps worth highlighting at this juncture that as part of the same lawsuit, Maria Schneider is currently demanding that YouTube identifies every single YouTube user that has had an infringement notice filed against their accounts since 2015.
Reiterating its calls to receive substantial punitive damages for Pirate Monitor’s fraud and litigation conduct, YouTube is asking the court to compel the entity to hand over the documents requested within ten calendar days.
YouTube’s discovery letter brief can be found here (pdf)