No Contract Breach In YouTube Removal Of Music Video

Lawyers for YouTube beat back a breach of contract suit over its removal of a reggae music video, by persuading a federal judge that YouTube's user agreement gives the company broad discretion to take down whatever material it sees fit. Song Fi Inc. v. Google Inc., 14-5080

“Luv Ya,” a music video recorded by the Rasta Rock Opera, may be one of the most innocent videos YouTube has removed for violating its terms of service. It features two 5-year-olds getting dressed up and going out to a restaurant for Valentine's Day lunch as reggae musicians serenade them. YouTube claimed the video's producer used robots to artificially inflate its view count, which is prohibited by the company's terms of service. Plaintiffs, including Rasta Rock Opera and music production company Song Fi Inc., denied using bots, and sued YouTube and owner Google Inc. for breach of contract and for libel.

Judge Samuel Conti of the U.S. District Court for the Northern District of California agreed with YouTube's argument that the company's terms of service give it sole discretion to remove videos from its streaming platform. “While the court believes ' that YouTube's terms of service are inartfully drafted, YouTube is correct,” District Judge Conti decided, in granting YouTube's motion to dismiss the breach of contract claims. “The terms of service unambiguously reserve to YouTube the right to determine whether 'content violates these terms of service' and, 'at any time, without prior notice and in its sole discretion, remove such content.'”

The district judge did not grant the plaintiffs leave to amend those claims.

But Judge Conti rejected YouTube's assertion that it's immune to the plaintiffs' claims under the Communications Decency Act, which gives online platforms the right to remove material that is obscene, lascivious, excessively violent or “otherwise objectionable.” YouTube's lawyers argued the inflated view count for “Luv Ya” was “otherwise objectionable,” but Judge Conti disagreed, ruling instead that the statute's language suggests “Congress did not intend to immunize YouTube from liability for removing materials from its website simply because those materials pose a 'problem' for YouTube.”

“Luv Ya” accumulated more than 23,000 views in the two months before YouTube removed the video and posted in its place a notice that read: “[T]his video has been removed because its content violated YouTube's terms of service.” The plaintiffs claimed the notice was defamatory because it associated “Luv Ya” with examples of violations listed in YouTube's terms of service, including pornography, child abuse, animal abuse, drug use and bomb making.

However, the average viewer would not make that association without first reading YouTube's Terms of Service, Judge Conti wrote in tossing the plaintiffs' claim of libel per se. He ruled the plaintiffs may be able to plead a case of libel per quod, or libel that doesn't appear defamatory on its face but can be proven so through further explanation.

Marisa Kendall writes for The Recorder, the San Francisco-based ALM sibling publication of Entertainment Law & Finance.

Lawyers for YouTube beat back a breach of contract suit over its removal of a reggae music video, by persuading a federal judge that YouTube's user agreement gives the company broad discretion to take down whatever material it sees fit. Song Fi Inc. v. Google Inc., 14-5080

“Luv Ya,” a music video recorded by the Rasta Rock Opera, may be one of the most innocent videos YouTube has removed for violating its terms of service. It features two 5-year-olds getting dressed up and going out to a restaurant for Valentine's Day lunch as reggae musicians serenade them. YouTube claimed the video's producer used robots to artificially inflate its view count, which is prohibited by the company's terms of service. Plaintiffs, including Rasta Rock Opera and music production company Song Fi Inc., denied using bots, and sued YouTube and owner Google Inc. for breach of contract and for libel.

Judge Samuel Conti of the U.S. District Court for the Northern District of California agreed with YouTube's argument that the company's terms of service give it sole discretion to remove videos from its streaming platform. “While the court believes ' that YouTube's terms of service are inartfully drafted, YouTube is correct,” District Judge Conti decided, in granting YouTube's motion to dismiss the breach of contract claims. “The terms of service unambiguously reserve to YouTube the right to determine whether 'content violates these terms of service' and, 'at any time, without prior notice and in its sole discretion, remove such content.'”

The district judge did not grant the plaintiffs leave to amend those claims.

But Judge Conti rejected YouTube's assertion that it's immune to the plaintiffs' claims under the Communications Decency Act, which gives online platforms the right to remove material that is obscene, lascivious, excessively violent or “otherwise objectionable.” YouTube's lawyers argued the inflated view count for “Luv Ya” was “otherwise objectionable,” but Judge Conti disagreed, ruling instead that the statute's language suggests “Congress did not intend to immunize YouTube from liability for removing materials from its website simply because those materials pose a 'problem' for YouTube.”

“Luv Ya” accumulated more than 23,000 views in the two months before YouTube removed the video and posted in its place a notice that read: “[T]his video has been removed because its content violated YouTube's terms of service.” The plaintiffs claimed the notice was defamatory because it associated “Luv Ya” with examples of violations listed in YouTube's terms of service, including pornography, child abuse, animal abuse, drug use and bomb making.

However, the average viewer would not make that association without first reading YouTube's Terms of Service, Judge Conti wrote in tossing the plaintiffs' claim of libel per se. He ruled the plaintiffs may be able to plead a case of libel per quod, or libel that doesn't appear defamatory on its face but can be proven so through further explanation.

Marisa Kendall writes for The Recorder, the San Francisco-based ALM sibling publication of Entertainment Law & Finance.