Schneider v. YouTube, LLC ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MARIA SCHNEIDER, et al., Case No. 20-cv-04423-JD 7 Plaintiffs, PRETRIAL ORDER NO. 2 v. 8 9 YOUTUBE, LLC, et al., Defendants. 10 11 As discussed at the second pretrial conference on June 5, 2023, the Court orders as follows 12 for the jury trial set for June 12, 2023: 13 I. JOINT TRIAL PLAN 14 1. For the parties’ joint proposed trial plan, the parties agree that the first sentence of 15 Paragraph 4.3 should state that statutory damages will be awarded by the jury on a per 16 work (not per infringement) basis for the six selected works to be tried for plaintiff 17 Schneider’s infringement claims. Dkt. No. 341 ¶ 4.3. The parties agree to try six 18 bellwether infringement works and six bellwether CMI violations, and to apply the 19 damages that may be awarded to the remaining claims on a pro rata basis. Id. ¶¶ 4, 7. In 20 light of these agreements, none of Schneider’s remaining infringement claims or CMI 21 violations will be tried to a jury in this trial or in any subsequent trial. See Fed. R. Civ. P. 22 39(a). 23 2. Pursuant to the parties’ agreement, plaintiffs are directed to file by June 9, 2023, a 24 dismissal of (1) plaintiff AST Publishing as a party; (2) the foreign unregistered works 25 infringement claims by AST and Uniglobe; and (3) Schneider’s claims with respect to 26 CLFN metadata. Dkt. No. 341. 27 II. JURY QUESTIONNAIRE CONFERENCE, VOIR DIRE, AND PRELIMINARY 1 JURY INSTRUCTIONS 2 1. The Court’s courtroom deputy clerk, Ms. Lisa Clark, will email the received jury 3 questionnaire responses to each side on June 7, 2023. A conference will be held in person 4 in Courtroom 11 on June 8, 2023, at 1:00 p.m., to discuss the responses. The Court will 5 also take up the proposed preliminary jury instructions. 6 2. The Court will file proposed voir dire questions on June 7, 2023. Any objections or 7 concerns will be taken up at the conference on June 8, 2023. The parties are directed to 8 file by 7:00 a.m. on June 12, 2023, a final joint list of witnesses to be used during voir dire. 9 3. As directed in the first pretrial order, Dkt. No. 335, each side will give a non- 10 argumentative “mini-opening” to the jury venire not to exceed 3 minutes. The parties are 11 directed to share their proposed statements before June 12, 2023. 12 III. DAUBERT MOTION RE HAL SINGER 13 1. Witness Singer is withdrawn by agreement. 14 IV. DAUBERT MOTION RE JOSEPH WINOGRAD 15 1. Exclusion is granted for the opinions in Paragraph 95 of the Winograd report. The opinion 16 that YouTube could provide “Ordinary Copyright Owners with effective tools to find 17 infringing videos on YouTube . . . within [its] existing capabilities and budget for such 18 activities and . . . with little technical risk,” is too vague, and is not sufficiently tied to any 19 particular expertise or specialized knowledge that Winograd has. FRE 702(a). 20 2. Exclusion of the remainder of Winograd’s opinions is granted for the same reasons. The 21 Court may revisit exclusion depending on the evidence admitted at trial with respect to 22 technical issues. 23 V. DAUBERT MOTION RE PAUL JESSOP 24 1. Witness Jessop’s opinions re CLFN metadata and method of identifying CMI within video 25 files are withdrawn by agreement. Dkt. No. 264-4 ¶¶ 137-46. 26 2. Exclusion is granted with respect to legal conclusions about knowledge or intent. 27 Exclusion is denied for the remainder of Jessop’s opinions. 1 VI. DAUBERT MOTION RE FRANCOIS-XAVIER NUTTALL 2 1. Witness Nuttall’s opinions about CLFN metadata are withdrawn by agreement. 3 2. Exclusion of the remainder of Nuttall’s opinions with respect to ISRCs is denied. 4 Plaintiffs may cross-examine Nuttall on his definition of CMI, and the relevance of 5 industry practice re ISRCs. 6 VII. DAUBERT MOTION RE STEVEN PETERSON 7 1. Witness Peterson is withdrawn by agreement. 8 VIII. PLAINTIFFS’ MOTIONS IN LIMINE 9 1. MIL No. 1: WITHDRAWN by plaintiffs. 10 2. MIL No. 2: DENIED. Plaintiffs have not shown that judicial estoppel applies. See Ah 11 Quin v. County of Kauai Dep’t of Transp., 733 F.3d 267, 270-71 (9th Cir. 2013) (judicial 12 estoppel factors). 13 3. MIL No. 3: DENIED. YouTube may introduce evidence regarding the scope of relevant 14 licenses. Plaintiffs’ argument that certain YouTube contracts grant licenses only to 15 YouTube, and not to YouTube’s users, should have been raised at summary judgment. See 16 Standing Order for Civil Jury Trials ¶ 6. 17 4. MIL No. 4: DENIED. YouTube may introduce evidence of an unsuccessful takedown 18 notice submitted by Uniglobe. 19 5. MIL No. 5: WITHDRAWN by plaintiffs. 20 6. MIL No. 6: CONDITIONALLY DENIED pending developments at trial. YouTube 21 may introduce evidence that a plaintiff transferred an exclusive right in a work as 22 warranted under FRE 402 and 403. 23 7. MIL No. 7: GRANTED. There will be no evidence or testimony about the marginal cost 24 of adding additional reference files to the Content ID database. YouTube did not 25 adequately disclose this information during discovery, as requested by plaintiffs. 26 8. MIL No. 8: DENIED. YouTube has stipulated to facts 1, 2, 4, 5, and 8 in the proposed 27 preliminary jury instructions. YouTube may contest the remaining facts at trial. Plaintiffs 1 IX. YOUTUBE’S MOTIONS IN LIMINE 2 1. MIL No. 1: DENIED. Evidence of plaintiffs’ lost revenues and YouTube’s profits may 3 be relevant to statutory damages. See Peer Int’l Corp. v. Pausa Records, Inc., 909 F.2d 4 1332, 1336 (9th Cir. 1990); 4 Nimmer on Copyright § 14.04 (statutory damages may be 5 based on “expenses saved and profits reaped by the defendants in connection with the 6 infringements” and “the revenues lost by the plaintiffs as a result of the defendant’s 7 conduct”) (internal quotations omitted). The Court may consider a limiting instruction to 8 ensure the jury considers the evidence appropriately. 9 2. MIL No. 2: DENIED. Schneider may testify about her opinions generally and 10 experiences with Content ID. Objections will be addressed as warranted during trial. 11 3. MIL No. 3: GRANTED with respect to claims of infringement of works identified after 12 February 25, 2022. Plaintiffs may offer evidence of 5 such infringements only to show 13 willfulness or other factors relevant to statutory damages. Plaintiffs must lay an adequate 14 foundation. The Court may consider a limiting instruction as warranted. 15 4. MIL No. 4: WITHDRAWN by YouTube. 16 5. MIL No. 5: DENIED. MIL No. 5 raises arguments that were declined at summary 17 judgment. See Dkt. No. 222 at 21 n.8. 18 6. MIL No. 6: GRANTED. Plaintiffs may not introduce evidence of the Content ID search 19 results for their works pursuant to the parties’ agreement. Dkt. No. 311-2, Ex. 6A. 20 7. MIL No. 7: DENIED IN PART. Plaintiffs may introduce reasonable evidence of 21 YouTube’s financial condition, but may not dwell on the issue. 22 8. MIL No. 8: DENIED. The parties may offer evidence about Schneider’s contractual 23 arrangements. No testimony may be offered about the meaning or intent of Section 7 of 24 the Administration Agreement between Schneider and ArtistShare Music Publishing unless 25 approved in advance by the Court. See Dkt. No. 222 at 12-13. 26 X. TRIAL CONDUCT 27 1. During witness testimony, all individuals at the tables for counsel will remain seated and 1 presentations and witness examinations are not an opportunity for the other side to engage 2 in discussions, take deliveries, rummage through boxes, and the like. Violators will be 3 excused from the courtroom for the day and possibly the remainder of trial, depending on 4 circumstances. 5 2. Individuals at the tables for counsel may not react visibly or audibly to witness testimony. 6 3. No motions may be filed during the trial without the Court’s express pre-approval on the 7 record. A request must be made in court and not in an after-hours filing. 8 || XI. OTHER ISSUES 9 1. Witnesses will testify once irrespective of whether one or both sides call the witness. 10 Formalities about a party’s case-in-chief will not be observed for the order of witness 11 testimony. Consequently, if plaintiffs call a witness whom YouTube also intends to call, 12 YouTube’s direct examination of the witness will follow plaintiffs’ examination of the 13 witness. YouTube may not put the witness on again for the presentation of their case to 14 the jury. 15 2. The Court requires opposing experts to testify back-to-back. This improves jury 16 comprehension and streamlines the presentation of evidence. The parties are directed to 3 17 plan accordingly. IT IS SO ORDERED. 19 Dated: June 6, 2023 20 21 JAMES ATO 22 United Yfates District Judge 23 24 25 26 27 28