Song fi, Inc. v. Google Inc.

• Decision Date: 29 October 2014
• Docket Number: Civil Action No. 14–283 RMC
• Citation: 72 F.Supp.3d 53
• Court: U.S. District Court — District of Columbia
• Parties: Song fi, Inc., et al., Plaintiffs, v. Google Inc. and Youtube, LLC, Defendants.

72 F.Supp.3d 53

Song fi, Inc., et al., Plaintiffs

v.Google Inc. and Youtube, LLC, Defendants.

Civil Action No. 14–283 RMC

United States District Court, District of Columbia.

Signed October 29, 2014

Ronald F. Wick, Cozen O'Connor, Washington, DC, for Plaintiffs.

Elizabeth Catherine Peterson, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA, Michael H. Rubin, Wilson Sonsini Goodrich & Rosati, San Francisco, CA, for Defendants.

OPINION

ROSEMARY M. COLLYER, United States District Judge

Plaintiffs Song fi, Inc., Rasta Rock, Inc., Joseph N. Brotherton, and N.G.B., a six-year-old minor and son of Plaintiff Brotherton, have filed suit against Defendant YouTube, LLC, and its parent company, Google Inc., alleging that they improperly removed Plaintiffs' video from the YouTube website. Plaintiffs have also filed for a preliminary injunction to compel the reinstatement of their video on YouTube. Defendants argue that the case should be litigated in Santa Clara County, California, pursuant to the forum selection clause expressly set forth in YouTube's Terms of Service. Defendants have also moved to dismiss the Amended Complaint. The Court will transfer this case to the U.S. District Court for the Northern District of California, where Santa Clara County is located. Both Plaintiffs' motion for a preliminary injunction and Defendants' motion to dismiss will be denied without prejudice.

I. BACKGROUND¹

Defendant YouTube, LLC is wholly owned by Defendant Google, Inc. and operates as a division of Google.² YouTube's website offers an online video service through which users can share and watch videos. For the most part, the website does not charge for uploading or viewing videos. In order to upload a video to the YouTube website, an individual or group must create a user account with YouTube. In the process of creating such an account, users are presented with a link to the YouTube Terms of Service Agreement. The account will not be activated unless the user checks a box stating “I agree to the Terms of Use and Privacy Policy.”

The Terms of Service contain the following provisions:

By using or visiting the YouTube website or any YouTube products, software, data feeds, and services provided to you on, from, or through the YouTube website (collectively the “Service”) you signify your agreement to (1) these terms and conditions (the “Terms of Service”), (2) Google's Privacy Policy, found at http://www.youtube.com/t/privacy and incorporated herein by reference, and (3) YouTube's Community Guidelines, found at http:// www.youtube.com/t/community_guidelines and also incorporated herein by reference. If you do not agree to any of these terms, the Google Privacy Policy, or the Community Guidelines, please do not use the Service.

...

You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over YouTube, either specific or general, in jurisdictions other than California. These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and YouTube that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California. These Terms of Service, together with the Privacy Notice at http://www.youtube.com/t/privacy and any other legal notices published by YouTube on the Service, shall constitute the entire agreement between you and YouTube concerning the Service. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and YouTube's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. YouTube reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND YOUTUBE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

YouTube Terms of Service (TOS) ¶¶ 1.A, 14, dated June 9, 2010, available at https://www.youtube.com/static?template=terms (last visited Oct. 28, 2014); see also Dkt. 8–4.

Plaintiff Song fi is a corporation with its principal place of business located in Washington D.C. that owns and distributes works of music and videos by independent musicians and filmmakers. On February 14, 2014, Song fi uploaded a video called “LuvYa LuvYa LuvYa” (hereinafter, LuvYa) onto YouTube's website. The video featured the musical group Rasta Rock Opera, as well as the performer Joseph Brotherton and his six-year-old son, N.G.B. Am. Compl. ¶¶ 3, 4, 31. On April 18, 2014, YouTube removed the video from its website and replaced it with a message reading: “This Video Has Been Removed Because its Content Violated YouTube's Terms of Service.” Id . ¶ 34.

Song fi protested the removal and was then informed by YouTube that the video had been removed because of YouTube's belief that Song fi or its agents had attempted to manipulate the video's view count in violation of YouTube's terms of service. The “view count” is a feature on the YouTube website whereby, directly next to or below each item of uploaded content, there is a display of the number of times that the content has been viewed by the public. YouTube prohibits uploaders from using any kind of electronic devices (known as “robots” or “spiders”) to artificially inflate the view count. These mechanisms are detected when a view count number increases at a rate exceeding that which could result from humans viewing the content on a web browser. Song fi disputed any artificial manipulation of the view count for the LuvYa video, and appealed YouTube's removal decision. However, YouTube refused to reinstate the video to its initial location.³

On July 28, 2014, Song fi filed a Complaint [Dkt. 1] against Google and YouTube alleging breach of contract, libel, and tortious interference with business relationships. Song fi simultaneously filed a motion for a temporary restraining order (TRO) [Dkt. 2] and a preliminary injunction [Dkt. 3] to have the video restored to its exact former location on the YouTube website. Google and YouTube opposed the motion. In their opposition [Dkt. 8], they argued that the motion should have been brought in Santa Clara County, California, under the plain terms of YouTube's Terms of Service Agreement. On August 1, 2014, the Court held a hearing to address Song fi's motions for injunctive relief. The Court construed the argument raised in Defendants' opposition as a motion to transfer the case.⁴ The Court then granted leave for the parties to brief the question of venue and reserved decision on Song fi's motion for a preliminary injunction, while denying its request for a TRO. Sept. 9, 2014 Minute Order.

On August 15, 2014, Song fi filed a memorandum on the question of venue [Dkt. 14], as well as an Amended Complaint [Dkt. 13] adding three new plaintiffs: Rasta Rock, Inc., Joseph Brotherton, and Mr. Brotherton's six-year old son, N.G.B. Rasta Rock is a music and film group and Mr. Brotherton is the president of Song fi, as well as an actor and performer; both, along with Mr. Brotherton's son, were featured in the LuvYa video. The Amended Complaint similarly includes claims of breach of contract, libel, and tortious interference; it newly alleges violations of the D.C. Consumer Protection Procedures Act (CPPA).⁵ Defendants filed a reply in support of their request to transfer, [Dkt. 17], and a motion to dismiss the amended complaint, [Dkt. 18].

II. LEGAL STANDARD—VENUE

28 U.S.C. § 1391 governs venue in federal district courts, providing in relevant part that:

A civil action may be brought in—(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b).

Under Federal Rule of Civil Procedure 12(b)(3), a defendant may, at the lawsuit's outset, test whether the plaintiff “has brought the case in a venue that the law deems appropriate.” Modaressi v. Vedadi, 441 F.Supp.2d 51, 53 (D.D.C.2006). “If the plaintiff's chosen forum is an improper venue under applicable statutes, or is otherwise inconvenient, the Court may dismiss the action or transfer the case to a district where venue would be proper or more convenient.” Id. (citing 28 U.S.C. § 1406 (providing for dismissal or transfer when venue is defective) and 28 U.S.C. § 1404 (allowing transfer “for the convenience of the parties and witnesses”)). “Because it is the plaintiff's obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue is proper.” Freeman v. Fallin, 254 F.Supp.2d 52, 56 (D.D.C.2003).

“[W]hen parties have agreed to a forum selection clause, the traditional analysis is altered and ... the clause should control absent a strong showing it should be set aside.” Gipson v....