Divino Grp. LLC v. Google LLC
| Decision Date | 06 January 2021 |
| Docket Number | Case No. 19-cv-04749-VKD |
| Court | U.S. District Court — Northern District of California |
| Parties | DIVINO GROUP LLC, et al., Plaintiffs, v. GOOGLE LLC, et al., Defendants. |
Plaintiffs Divino Group LLC d/b/a GlitterBombTV.com, Chris Knight, Celso Dulay, Cameron Stiehl, BriaAndChrissy LLC d/b/a "BriaAndChrissy," Bria Kam, Chrissy Chambers, Chase Ross, Brett Somers, Lindsey Amer, Stephanie Frosch, Sal Cinquemani, Tamara (Sheri) Johnson, and Greg Scarnici assert the following claims against defendants Google LLC ("Google") and YouTube, LLC ("YouTube"): (1) violation of plaintiffs' First Amendment rights under 42 U.S.C. § 1983; (2) violation of Article I, section 2 of the California Constitution; (3) violation of the Unruh Act, California Civil Code § 51, et seq.; (4) unfair competition under California Business and Professions Code §§ 17200, et seq.; (5) breach of the implied covenant of good faith and fair dealing; and (6) false advertising and false association in violation of the Lanham Act, 15 U.S.C. § 1125, et seq. In addition, plaintiffs seek a declaration that Section 230 of the Communications Decency Act ("CDA"), 47 U.S.C. § 230(c), on which plaintiffs expect defendants to rely as an affirmative defense, is unconstitutional. Finally, plaintiffs separately seek a declaration that defendants have violated the rights and obligations pled as the bases for all of defendants' other claims. Dkt. No. 20.
Defendants move to dismiss all claims in the second amended complaint ("SAC") for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and as barred under Section 230 of the CDA. Dkt. No. 25.
The Court heard oral argument on defendants' motion on June 2, 2020. Dkt. No. 58. Having considered the parties' submissions and the arguments made at the hearing, the Court grants defendants' motion to dismiss the SAC with limited leave to amend.
A subsidiary of Google, YouTube is the world's most widely used online video hosting platform. Dkt. No. 20 ¶¶ 46, 50, 53. Content creators may upload videos to the YouTube platform without charge, enabling YouTube's billions of users to view them, comment on them, and subscribe to their favorite creators' channels. Id. ¶¶ 52-53.
Use of YouTube's services requires agreement to YouTube's Terms of Service, which incorporate YouTube's Community Guidelines.2 Id. ¶¶ 10, 14, 59. The Terms of Service in operation at the time the SAC was filed state that "YouTube reserves the right to discontinue any aspect of the Service at any time" and that "YouTube reserves the right to remove Content without prior notice."3 Dkt. No. 25-1, Ex. 2 at 2, 3.
To accommodate sensitive viewers, YouTube offers a feature called Restricted Mode, an optional, opt-in setting that allows viewers to screen out content flagged as age-restricted or "potentially adult." Dkt. No. 20 ¶¶ 77-79. Defendants employ Restricted Mode to "limit[] vieweraccess by younger, sensitive audiences to video content that contains certain specifically enumerated 'mature' aspects," including: talking about drug use or abuse or drinking alcohol in videos; overly detailed conversations about or depictions of sex or sexual activity; graphic descriptions of violence, violent acts, or natural disasters or tragedies; mature subjects such as terrorism, war, crime, and political conflicts resulting in death or serious injury, even if no graphic imagery is shown; profane language; or incendiary and demeaning content directed toward an individual or group. Id. ¶¶ 77, 85. Videos may qualify for Restricted Mode in two ways: (1) YouTube's software may automatically designate a video for Restricted Mode based on an examination of "signals," such as the video's metadata, title, and language used in the video, or (2) a team of human reviewers may deem a video to have violated YouTube's Community Guidelines after a viewer "flags" the video as "inappropriate." Id. ¶ 81; see also Dkt. No. 25-1, Ex. 12 (YouTube Help website discussing Restricted Mode); Prager Univ. v. Google LLC ("Prager III"), 951 F.3d, 991, 996 (9th Cir. 2020) (describing Restricted Mode). Restricted Mode "operates in tandem with separate, more stringent 'Age Based Restriction' filtering criteria, intended to block all mature content to viewers under the age of 18," which focuses on vulgar language (including sexually explicit language or excessive profanity), violence and disturbing imagery, nudity and sexually suggestive content, or portrayal of harmful or dangerous activities. Dkt. No. 20 ¶ 82. Of YouTube's daily views, 1.5% (or approximately 75 million of the nearly 5 billion daily views) are from viewers who have activated Restricted Mode. Id. ¶ 80.
YouTube allows content creators whose channels meet certain minimum viewership requirements to earn revenue from, or "monetize," their videos by running advertisements with them as part of the YouTube Partner Program. To be eligible for monetization, content creators are required to agree to certain additional terms of service, including YouTube's Partner Program Terms and the Google AdSense Terms of Service.4 See Dkt. No. 20 ¶ 331; Dkt. No. 25-1, Exs. 6, 10. Creators seeking to monetize their videos must also agree to comply with YouTube'smonetization policies, including YouTube's advertiser-friendly content guidelines. See Dkt. No. 20 ¶¶ 152, 248, 331; Dkt. No. 25-1, Exs. 5-11. YouTube uses automated software to identify content it deems inappropriate for advertising. Content creators may appeal a decision finding their content inappropriate for advertising and may request further review. See Dkt. No. 20 ¶¶ 94-95; Dkt. No. 25-1, Ex. 9 at 1.
The YouTube Partner Program Terms provide that "YouTube is not obligated to display any advertisements alongside your videos and may determine the type and format of ads available on the YouTube Service." Dkt. No. 25-1, Ex. 6 at 1. The AdSense Terms of Service state that Google reserves the rights to "refuse or limit [a content creator's] access" to advertising services and to "refuse to provide" those services in connection with a creator's content. Id., Ex. 10 at 1.
Plaintiffs are Lesbian, Gay, Bisexual, Transgender, Transsexual or Queer ("LGBTQ+") content creators who use YouTube's service. Dkt. No. 20 ¶¶ 1, 35-44. Each plaintiff operates or contributes to at least one YouTube channel that posts content related to LGBTQ+ interests. Id. Plaintiffs have collectively uploaded thousands of videos to YouTube. Id. ¶¶ 35, 37-41. At least some plaintiffs have sought to monetize their content by participating in defendants' advertisement programs. See id. ¶¶ 55, 89, 122, 132-135, 144, 170, 225, 228, 230, 233.
Plaintiffs allege that YouTube "holds itself out as one of the most important and largest public forums for the expression of ideas and exchange of speech available to the public," and that defendants have represented that "YouTube is, has been and will remain the premier space for freedom of expression in video content on the Internet." Id. ¶¶ 46, 57; see also id. ¶ 59 (). Specifically, plaintiffs point to defendants' statements that their "mission" is to "give people a voice" in a "place to express yourself" and in a "community where everyone's voice can be heard," and to defendants' promises that "everyone's voice" will be heard, subject only to neutral, content-based rules and filtering that "apply equally to all" regardless of the viewpoint, identity, or source of the speaker. Id. ¶¶ 59-60. Plaintiffs also point to YouTube's testimony before Congress asserting that it enforces its policies in a neutral manner.Id. ¶ 61.
Plaintiffs allege that, despite YouTube's purported viewpoint neutrality, defendants have discriminated against plaintiffs based on their sexual or gender orientation, identity, and/or viewpoints by censoring or otherwise interfering with certain videos that plaintiffs uploaded to YouTube. Id. ¶¶ 3, 7. According to plaintiffs, this censorship takes the form of placing age restrictions on some of plaintiffs' videos and/or limiting access to their videos through YouTube's Restricted Mode setting. Id. ¶¶ 28, 167, 170, 185, 195-197. Specifically, plaintiffs allege that defendants have restricted access to some of plaintiffs' videos based on defendants' discriminatory animus toward plaintiffs' sexual orientation, gender, or political identities or viewpoints. Id. ¶¶ 19-21, 299 ("No compelling, significant, or legitimate reason justifies restricting or demonetizing Plaintiffs' videos."). Plaintiffs also allege that defendants have "demonetized" some of their videos—by preventing advertisements from running on those videos—in a viewpoint-discriminatory manner. See id. ¶¶ 26.f, 100, 158, 164, 170, 180, 193, 217, 225, 233, 236, 247. Plaintiffs do not allege, however, that YouTube permanently removed any of their videos. Plaintiffs allege only that some of their videos have been demonetized or censored (in the form of an age restriction or exclusion through the Restricted Mode setting) based on defendants' intolerance towards plaintiffs' gender, sexual orientation, and political viewpoints.
In addition to Restricted Mode, age restriction filtering, and demonetization, plaintiffs allege that YouTube has engaged in other discriminatory acts based on their LGTBQ+ identities and viewpoints. These include advertising restrictions, use of discriminatory artificial intelligence and algorithms, demonetizing channels wholesale, "shadow banning" (i.e., not showing videos in search results), deleting LGBTQ+ video thumbnails, preventing subscribers from receiving notifications of plaintiffs' new videos, excluding LGBTQ+ content from recommended "Up Next"...
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