Song fi Inc. v. Google, Inc.

• Decision Date: 10 June 2015
• Docket Number: Case No. 14–5080 SC
• Court: U.S. District Court — Northern District of California
• Parties: Song fi Inc., Joseph N. Brotherton, Lisa M. Pellegrino, N.G.B., a minor, Rasta Rock, Inc., d/b/a ‘The Rasta Rock Opera,‘ Plaintiffs, v. Google, Inc., Youtube LLC, Defendants.

108 F.Supp.3d 876

Song fi Inc., Joseph N. Brotherton, Lisa M. Pellegrino, N.G.B., a minor, Rasta Rock, Inc., d/b/a ‘The Rasta Rock Opera,‘ Plaintiffs,

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

Case No. 14–5080 SC

United States District Court, N.D. California.

Signed June 10, 2015

Erik L. Jackson, Cozen O'Connor, Los Angeles, CA, Edward W. Lyle, Law Office of Edward W. Lyle, Ronald F. Wick, Cozen O'Connor, Washington, DC, Plaintiffs.

David H. Kramer, Elizabeth Catherine Peterson, Jacob Thayer Veltman, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA, Michael H. Rubin, Wilson Sonsini Goodrich & Rosati, San Francisco, CA, Edward W. Lyle, Law Office of Edward W. Lyle, Washington, DC, for Defendants.

ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT

SAMUEL CONTI, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This case concerns the removal and relocation of a music video, "Luv ya Luv ya Luv ya" (or simply "Luv ya"), on Defendant YouTube's¹ video-sharing website. Plaintiffs Song fi, Inc., a music production company, N.G.B., a six-year old boy, his parents, Joseph Brotherton and Lisa Pellegrino, and the Rasta Rock Opera, a music group, worked together to conceive, record, and produce "Luv ya," and post it on YouTube. Plaintiffs allege that when YouTube removed its video, because (at least according to a notice posted in the video's place) its "content violated YouTube's Terms of Service," YouTube violated consumer protection laws, breached express or implied contracts, and committed both libel and tortious interference. See ECF No. 13 ("FAC" or "Complaint") at ¶ 34.

Now before the Court are several potentially dispositive motions. First, YouTube moves to dismiss the Complaint, arguing Plaintiffs' claims are barred by the Communications Decency Act, 47 U.S.C. Section 230(c)(2)(A), or contract. ECF No. 26 ("MTD"). Plaintiffs oppose the motion to dismiss, ECF No. 37 ("MTD Opp'n"), and have moved for partial summary judgment in their own right, arguing the Court should find as a matter of law that YouTube's notice was libel per se. ECF No. 32 ("MSJ"). Both motions are fully briefed and appropriate for resolution without oral argument under Civil Local Rule 7–1(b). ECF Nos. 38 ("MTD Reply"), 41 ("MSJ Opp'n"), 48 ("MSJ Reply"). For the reasons set forth below, YouTube's motion to dismiss is GRANTED while Plaintiffs' motion for partial summary judgment is DENIED.

II. BACKGROUND

"Luv ya" is a music video by the Rasta Rock Opera featuring the dramatized tale of a five-year-old boy (played by Plaintiff N.G.B.) and five-year-old girl who dress up and go to a restaurant for lunch on Valentine's Day. As the children eat their lunch, a guitarist and a trumpet player (played by Plaintiff Joseph Brotherton, N.G.B.'s father and the president of both Song fi and Rasta Rock Opera) serenade them. Song fi produced "Luv ya" and uploaded it to YouTube, in the process agreeing to YouTube's Terms of Service. Since YouTube removed "Luv ya" and later relocated it to a currently-private location on Song fi's user profile, the video is no longer publicly accessible on YouTube. Nevertheless, the video is still available on Song fi's website. See The Rasta Rock Opera, Luv ya Luv ya Luv ya, Song fi, http://songfi.com/beta/wp-content/uploads/2015/03/Luv-ya-Luv-ya-Luv-ya.mp4.

YouTube maintains a view count, visible to users next to each video, for all videos accessible on its site. The view count reflects "the number of times YouTube believes users ... legitimately requested to view the video." ECF No. 41–1 ("Second Hushion Decl.") at ¶ 7. However, in an effort to make their videos appear more popular than they actually are, some users or promoters artificially inflate their view counts by using " ‘robots,’ ‘spiders,’ or ‘offline readers,’ that access [a video] in a manner that sends more request messages to YouTube servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser." See ECF No. 8–3 ("First Hushion Decl.") at Ex. 1 ("Terms of Service") § 4(h).² In an effort to maintain the legitimacy of its view counts, YouTube's Terms of Service, to which all users must agree in order to post videos, prohibit the use of such methods. See id. The Terms of Service also incorporate by reference YouTube's Community Guidelines, which prohibit, among other things, uploading videos with pornographic, obscene, or otherwise objectionable content.

During the two months after Song fi posted "Luv ya," the video's view count rose to over 23,000, the link to the video was posted on Song fi's and Rasta Rock's social media pages, and the video was featured in various promotions. But, two months after "Luv ya" was first posted, YouTube pulled the plug, removing the video from its website and posting in its place a notice that "[t]his video has been removed because its content violated YouTube's Terms of Service." See FAC ¶ 34. Subsequently, YouTube reposted the video to a new location (currently private) without its view count, "likes," or comments. Plaintiffs protested, and YouTube later explained that it removed the video because it determined the view count for "Luv ya" was inflated through automated means, and thus violated its Terms of Service. Id. at ¶ 37. Plaintiffs deny any involvement in any view count inflation, and allege that the removal and relocation of the video as well as the notice's statement that the video's "content" violated the Terms of Service harmed Song fi's business and efforts to obtain funding, caused Nike to cancel a performance by the Rasta Rock Opera, and personally injured N.G.B. and his father.

As a result, Plaintiffs brought suit, initially in the United States District Court for the District of Columbia. See ECF No. 1. The case was transferred to this District after Judge Collyer granted a motion to transfer under Federal Rule of Civil Procedure 12(b)(3) pursuant to the forum selection clause in YouTube's Terms of Service. See ECF No. 19 ("Transfer Order"). Now in this, the contractually selected venue, YouTube has filed a motion to dismiss and Plaintiffs a motion for partial summary judgment, seeking to resolve all or part of Plaintiffs' claims.

III. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)"tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The allegations made in a complaint must be both "sufficiently detailed to give fair notice to the opposing party of the nature of the claim so that the party may effectively defend against it" and "sufficiently plausible" such that "it is not unfair to require the opposing party to be subjected to the expense of discovery." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011).

B. Federal Rule of Civil Procedure 56

Entry of summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment should be granted if the evidence would require a directed verdict for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A moving party without the ultimate burden of persuasion at trial–usually, but not always, a defendant–has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir.2000).

IV. DISCUSSION

The Court addresses YouTube's motion to dismiss first, before turning to Plaintiffs' motion for partial summary judgment.

A. Motion to Dismiss

Plaintiffs' Complaint alleges five causes of action: (1) libel, (2) breach of express contract, (3) breach of implied contract, (4) tortious interference, and (5) violations of the D.C. Consumer Protection Procedures Act ("CPPA"), D.C.Code Section 283904.

YouTube argues it has statutory immunity from the breach claims under the Communications Decency Act, 47 U.S.C. Section 230(c)(2)(A). Furthermore, even if it is not immunized, YouTube contends these claims fail because it was authorized to relocate the video by its Terms of Service. Similarly, YouTube argues the claims stemming from its notice fail because the notice is true, Plaintiffs have inadequately pleaded various elements of their tortious interference claims, and the CPPA claims should be dismissed because the Terms of Service provide that California law governs.

The Court will address the statutory immunity argument first before turning to the contract and implied contract claims, libel, tortious interference, and finally, CPPA claims.

1. Communications Decency Act Section 230(c)

As a threshold matter, YouTube argues it is entitled to statutory immunity from Plaintiffs' breach of contract and tortious interference claims because "Luv ya" and its allegedly artificially inflated view count are "otherwise objectionable" within the meaning of Section 230(c)(2) of the Communications Decency Act. See 47 U.S.C. § 230(c)(2). However, because the Court finds neither the plain meaning of ...