Ascertainability, forthcoming, Yale Law J. (2015)
have been enforcing an “implicit” requirement for class certification, in
addition to the explicit requirements established in Rule 23 of the Federal
Rules of Civil Procedure. The ascertainability requirement insists that a
proposed class be defined in “objective” terms and that an “administratively
feasible” method exist for identifying individual class members and
ascertaining their class membership. This requirement has generated
considerable controversy and prevented the certification of many proposed
classes. The requirement has taken a particular toll on consumer class actions,
where potential class members are often unknown to the representative
plaintiffs, often lack documentary proof of their injury, and often do not even
know they have a legal claim at all.
ascertainability requirement’s conceptual foundations. The Note first evaluates
the affirmative case for the requirement and finds it unpersuasive. At most,
Rule 23 implicitly requires something much more modest: that classes enjoy what
I call a minimally clear definition. The Note then argues that the
ascertainability requirement frustrates the purposes of Rule 23 by pushing out
of court the kind of cases Rule 23 was designed to bring into court. Finally,
the Note proposes that courts abandon the ascertainability requirement and
simply perform a rigorous analysis of Rule 23’s explicit requirements. This
unremarkable approach to class certification better reflects what the Rule says
and better advances what the Rule is for.
Lovers of the music of Frank Sinatra, The Beatles, Etta
James, and hundreds of other recording artists whose records were made before
February 15, 1972, may soon have a hard time hearing these great artists on any
satellite or Internet radio service. Recently, two federal district courts have
found that state laws were violated when satellite radio broadcaster Sirius XM
Radio included pre-1972 sound recordings in its broadcasts without the owners’
permission, but these courts did not consider-–and the parties did not
argue-–how the Supremacy Clause applies to those state law claims. This article
argues that state laws purporting to grant digital performance rights to
pre-1972 sound recordings are necessarily preempted by the Supremacy Clause of
the United States Constitution.
This article contends that enforcement of those state laws
would create a serious obstacle to “the accomplishment and execution of the
full purposes and objectives of Congress” in enacting the Digital Performance
Right in Sound Recordings Act of 1995 (“DPRA”). The DPRA reflects Congress’
careful balancing of interests and recognition of the need for an easily
administrable system of licensing, which Congress established through a complex
and comprehensive compulsory licensing system. The Supremacy Clause thus
preempts all state laws purporting to require licenses for digital performance
rights or payment of royalties for the use of such rights by Internet or
satellite radio stations beyond what is expressly provided for in the
compulsory licensing system established by the DPRA, because permitting
countless owners of individual pre-1972 sound recordings to assert claims for
royalties and other damages outside of the compulsory licensing system would
frustrate Congress’ goals in establishing that system.
Part I of this article provides a brief overview of the
federal rights at issue and the (very) brief history of performance rights in
sound recordings, noting the absence of any express state law recognition of a
performance right in sound recordings throughout most of the 20th century
(other than short-lived decisions in two states over seventy-five years ago
that focused on notices stamped on records purporting to prohibit a purchaser’s
use of sound recordings on radio rather than a true performance right). It is
only in very recent cases that courts in New York and California have
recognized state law performance rights. However, they did so without
considering Supremacy Clause preemption or how any state law performance rights
might conflict with the federal statutory compulsory license regime established
by the DPRA.
Part II of the article explains the relevant legislative
history and provisions of the DPRA governing the comprehensive licensing
system. That statutory license and rules governing it were established to
provide an efficient mechanism for digital Internet and satellite radio
services to operate in compliance with their legal obligations. In Part III,
the article explains Supremacy Clause doctrine and distinguishes the Supreme Court’s
opinion in Goldstein v. California, which rejected a Supremacy Clause challenge
to a state record piracy law in 1973. It demonstrates why neither the Court’s
decision in Goldstein nor the language of the Copyright Act’s express
preemption clause, which exempts state laws governing pre-1972 sound recordings
from statutory preemption, precludes conflict preemption under the Supremacy
Clause in the context of digital radio services that are subject to the federal
compulsory license.
Part IV of the article acknowledges that preemption of state
law protection for digital performances of pre-1972 sound recordings raises
equitable concerns, as it leaves some of this nation’s most treasured musical
artists uncompensated for use of their works by Internet and satellite
streaming services while the authors of more current works are compensated.
However, given the delicate balancing that has gone into Congress’ recognition
of a limited digital performance right and creation of a compulsory statutory
licensing system, any remedy for the inequity to owners of pre-1972 sound
recordings must be left to Congress. Allowing individual courts in individual
states to craft a patchwork of inconsistent remedies would disrupt the balance
struck by Congress and interfere with the functioning of the compulsory license
system for digital sound recording performances. This is a result that the
Supremacy Clause does not permit.
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Rebecca Tushnet 