Copyright Class Actions Part 2

Copyright Class Actions Part 2 By Joshua Graubart{5:06 minutes to read} As discussed in my prior post, litigating a low-value copyright infringement claim is often simply not worth the time and expense required. However, such a claim can sometimes be made cost-effective by aggregating it with similar claims in a class action. A single copyright holder with a small claim can serve as a representative of a “class” of similarly affected rightsholders.

The “class” in this example would be a large group of copyright holders, each of whom owns a work which has been infringed in the same way by the defendant(s). However, it is not enough for a copyright holder to determine that a class of similarly-situated defendants exists. The court must investigate and certify that a class is the most efficient way to obtain justice, and whether the copyright holder initiating the suit is a suitable person to represent the class. In this post, I will discuss how a court determines whether a class is an appropriate vehicle for obtaining justice.

The trial court has a great deal of discretion in considering the suitability of a class. A major consideration is efficiency. The logic that underlies class actions is that they provide an efficient way to effect justice for many injured people at once. This makes it more likely that justice will, in fact, be done since many potential plaintiffs may not realize they have been harmed, or may be unable to afford to pursue a lawsuit on their own. It also makes resolution less burdensome on the courts: a single class action on behalf of hundreds of plaintiffs is more efficient than hundreds of individual suits.

Consequently, in weighing the suitability of a class, the court considers two factors:

  1. Numerosity: Are there so many potential class members that it would be impracticable simply to find and notify them, and get them to agree voluntarily to pursue their claims?
  2. Commonality: Do the potential class members’ claims have one or more particular questions of law or facts in common?


There is no hard-and-fast rule for determining whether a potential class is big enough. However, a widely-cited rule of thumb has been articulated by scholars and been tacitly endorsed by at least some federal courts: generally a class containing fewer than twenty-one is too small; a class containing more than forty is sufficient. Proposed class sizes of between those two numbers are dealt with very much on a case-by-case basis according to a number of factors.

In considering numerosity, the court also considers whether joinder – adding each potential class member as an individual plaintiff – is practicable. It is worth remembering that efficiency is a primary goal: adding small numbers of plaintiffs to a case is less burdensome in the long run than certifying a class and having to oversee the mechanics of finding and notifying the class members and distributing any ultimate payment. However, the greater the number – and the greater the geographic diversity – of the plaintiff class members, the less practicable joinder becomes.


As to the second criterion, the court must find that the claims of the potential class members share common issues of fact or law, so that determining the answers to those questions for a single member of the class serves to determine those questions for all members.

Often, the common questions involve a defendant’s business policies, such as employment or billing practices. In a copyright context, a defendant’s practice of streaming recorded music, for example, without obtaining certain licenses, would involve a common question of law or fact, which would affect the claims of the copyright holders in each of the streamed recordings. If the court finds that the defendant’s practice infringed rights in any of these streamed recordings, it would follow that the defendant infringed all the class members’ rights with respect to their respective sound recordings.

In the next post, I will discuss how the court determines whether a particular copyright holder is acceptable as a class representative.

Joshua GraubartJoshua Graubart




1 See, e.g., Cox v. American Cast Iron Pipe, 784 F.2d 1546, 1553 (11th Cir. 1986) (quoting 3B Moore’s Federal Practice ¶ 23.05[1] at n. 7 (1978)).