Ligeri v. YouTube, et al

Filing 20

ELECTRONIC Document containing Appellee's Brief filed by Appellees Google, Inc. and YouTube. [09-1071] (ELW)

09-1071
United States Court of
Appeals
for the

First Circuit
BENJAMIN LIGERI,
Plaintiff-Appellant,
– v. –
YOUTUBE, LLC; GOOGLE, INC.
Defendants-Appellees.

On Appeal from the United States District Court for the District of Massachusetts
APPELLEES’ BRIEF
MICHAEL BERTA
ANNE MARIE NICPON
WILSON SONSINI GOODRICH & ROSATI, PC
One Market
Spear Tower, Ste. 3300
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]
Attorneys for Defendants-Appellees

FED R. APP. P. 26.1 CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Defendants
Appellees, by and through their undersigned counsel, state that:
YouTube, LLC is a wholly-owned subsidiary of Google Inc. YouTube, Inc.
no longer exists as a corporate entity. Google Inc. is publicly traded on the New
York Stock Exchange. No publicly traded company owns 10% or more of the
stock of Google Inc.
Dated: May 21, 2009

/s/
Michael A. Berta
Wilson, Sonsini Goodrich & Rosati, PC

One Market
Spear Tower, Ste. 3300
San Francisco, California 94105
Tel: [phone]
Fax: [phone]

i

TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
STATEMENT OF THE CASE..................................................................................1
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF ARGUMENT .................................................................................5
ARGUMENT .............................................................................................................5
A.

Standard of Review ...............................................................................5

B.

Discussion of Issues ..............................................................................6
a.

The Terms of Use Constitute a Valid and Binding
Agreement Between Mr. Ligeri and YouTube ...........................6

b.

Mr. Ligeri’s Claims That He Did Not Accept the
Contract Lack Merit ....................................................................8

c.

The District Court Properly Dismissed Mr. Ligeri’s
Claims Based on the Forum Selection Clause ..........................11

CONCLUSION........................................................................................................13

ii

TABLE OF AUTHORITIES
Page(s)
CASES
Alison H. v. Byard, 163 F.3d 2 (1st Cir. 1998) ......................................................... 6
Bowen v. YouTube, No. C08-505............................................................................ 12
Cambridge Biotech Corp. v. Pasteur Sanofi Diagnostics, 433 Mass.
122 (Mass. 2000) .......................................................................................... 11
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) .................................... 11
Commerce Bank & Trust Co. v. Hayek, 46 Mass. App. Ct. 687 (1999)............... 6, 8
Edwards v. John Hancock Mut. Life Ins. Co., 973 F.2d 1027 (1st Cir.
1992) ............................................................................................................... 5
Digital Envoy, Inc. v. Google Inc., 319 F.Supp.2d 1377 (N.D. Ga.
2004) ............................................................................................................. 12
Doe 1 v. AOL LLC, 552 F.3d 1077 (9th Cir. 2009) .................................................. 6
Edmonds v. United States, 642 F.2d 877 (1st Cir.1981)........................................... 6
Farrell v. Chandler, Gardner & Williams, Inc., 252 Mass. 341 (Mass.
1925) ............................................................................................................... 6
Feldman v. Google, Inc, 513 F.Supp.2d 229 (E.D. Penn. 2007) ................... 8, 9, 10,
12

Hughes v. McMenamon, 204 F.Supp.2d 178 (D.Mass. 2002)................................ 11
Lambert v. Kysar, 983 F.2d 1110 (1st Cir. 1993)..................................................... 5
Person v. Google Inc., 456 F.Supp.2d 488 (S.D.N.Y. 2006) ................................. 12
Powers v. Dickson, Carlson & Campillo, 54 Cal. App. 4th 1102 (Cal.
App. 2 Dist. 1997) .......................................................................................... 6
Register.com Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004) ................................. 7
Silva v. Encyclopedia Britannica, Inc., 239 F.3d 385 (1st Cir. 2001).................... 11
Smith, Valentino & Smith, Inc. v. Superior Ct., 17 Cal.3d 491 (Cal.
1976) ............................................................................................................. 11
Stewart v. Preston Pipeline, Inc., 134 Cal. App. 4th 1565 (Cal.App. 6
Dist. 2005) ...................................................................................................... 8
Yeboah-Sefah v. Ficco, 556 F.3d 53 (1st Cir. 2009)................................................. 5
iii

RULES
Fed. R. App. P. 32(5) .............................................................................................. 14
Fed. R. App. P. 32(a) .............................................................................................. 14
Fed. R. App. P. 32(a)(6).......................................................................................... 14
Fed. R. App. P. 32(a)(7)(B)(iii) .............................................................................. 14

iv

INTRODUCTION
This is a simple contract case. Appellee YouTube LLC (“YouTube”) offers
internet users around the world the opportunity to upload and share their videos
across the internet. In order to offer this free service, YouTube requires that users
agree to a limited set of terms and conditions governing the use of YouTube (the
“Terms of Use”). Appellant Benjamin Ligeri (“Mr. Ligeri”) accepted this
agreement and took its benefits to make extensive use of YouTube’s free service.
Now, Mr. Ligeri wishes to avoid the provision he does not like – a mandatory
forum selection clause that provides for exclusive jurisdiction in Northern
California for disputes relating to the use of YouTube.
The district court refused to support Mr. Ligeri’s attempts to “pick and
choose what parts of the agreement” he wished to accept and dismissed the case
because Mr. Ligeri brought his claims in the wrong court. App.299:19-21. 1
Because Mr. Ligeri is bound by his agreement, the district court’s dismissal should
be affirmed.
STATEMENT OF THE CASE
On July 22, 2008, Mr. Ligeri mailed a letter to a California process server
attaching a copy of his complaint before filing it in a court of law. App.148-149.
After receiving the copy, Google Inc. and YouTube LLC’s (“Appellee’s”) outside
1

Citations to Appellees’ Appendix are referenced as “App.[page number].”
Paragraph or lines numbers are included in the citation when applicable.
1

counsel contacted Mr. Ligeri on August 6, 2008 and specifically informed Mr.
Ligeri of the existence of the choice of law provisions and the applicable forum
selection clause in YouTube’s Terms of Use. App.145 ¶ 4. Mr. Ligeri was
informed that, pursuant to the Agreement, he was required to file his complaint in
California. Id. Nevertheless, on the next day, August 7, 2008, Mr. Ligeri filed an
unsigned copy of his complaint in the United States District Court for the District
of Massachusetts. App.3, 7. He then submitted a signature page to the Complaint
on August 26, 2008. 2 App.4, 124-125.
On October 31, 2008, Appellees filed a motion to dismiss, pursuant to Rule
12(b) of the Federal Rules of Civil Procedure, seeking to enforce the forum
selection clause in the parties’ agreement. After full briefing, the district court
heard oral arguments on the motion on December 30, 2008. Ruling from the
bench, the court stated, “the case is brought in the wrong court. It is to be brought
in the court of competent jurisdiction in San Mateo County of California. It was
not, and, for those reasons, may not properly proceed here.” App.302:14-20. The
district court offered Mr. Ligeri the opportunity to transfer the case to the Northern
District of California. App.301:9-19. Mr. Ligeri did not accept this option, and

YouTube LLC and Google Inc. agreed to accept service of Mr. Ligeri’s
Complaint on September 23, 2008. App.268. The motion to dismiss was brought
on behalf of YouTube LLC and Google Inc. The other named defendants –
business names that are not corporate entities or persons identified by their first
names – have not been served and did not accept service of the Complaint.

2

2

consequently, the court granted Appellees’ motion to dismiss. App.302:16-17.
Mr. Ligeri’s appeal followed.
STATEMENT OF FACTS
YouTube.com, launched by appellee YouTube in December 2005, is a
website that allows users to view and upload video content, free of charge.
App.127 ¶ 2. Users who wish to upload their own videos are required to sign up
for a YouTube account. Id. at ¶ 3.
Appellant Benjamin Ligeri operates a number of accounts on YouTube,
including his two primary channels, “Bennybaby” and “ProfessorCarlton,” created
in March 2006 and March 2007, respectively. App.8 ¶ 1.1(b); App.14 ¶ 3.8(a);
App.270 ¶ 3. In addition to his two primary accounts, Mr. Ligeri has opened at
least seven other accounts. App.53 ¶ 13.5.
At the time Mr. Ligeri created “Bennybaby” and “ProfessorCarlton” in 2006
and 2007, the YouTube sign-up screen required that, prior to creating a YouTube
account, a prospective user must fill out certain user information, agree to
YouTube’s terms of use and privacy policy and then take an affirmative step of
selecting a button to create a YouTube account. App.270 ¶ 5. More specifically,
when Mr. Ligeri created his YouTube accounts, the account creation webpage
contained two conditions just above the “Sign Up” button: “I certify I am over 13
years old” and “I agree to the terms of use and privacy policy.” Id. The terms of

3

use and privacy policy were both underlined and contained hyperlinks that
connected the prospective user directly to the Terms of Use and Privacy Policy
then in effect. Id. at ¶ 4. Mr. Ligeri confirmed that this language was on the
account creation page when he affirmatively created his YouTube accounts.
App.297:1-16.
In addition, every time a user then uploads a video to his account, the user is
reminded of their agreement by a warning stating, “By clicking ‘Upload Video’
you are representing that this video does not violate YouTube’s Terms of Use.”
App.128 ¶ 6. Mr. Ligeri has uploaded over a thousand videos to his YouTube
accounts. App.14 ¶ 3.7.
Since the inception of the website, the Terms of Use have included a
mandatory forum selection clause that provides, “Any claim or dispute between
you and YouTube that arises in whole or in part from the YouTube website shall
be decided exclusively by a court of competent jurisdiction located in San Mateo
County, California.” 3 App.127 ¶ 4.
YouTube is a wholly owned subsidiary of Google Inc. (“Google”), which is
also an Appellee in this action. Id. at ¶ 1.
The Terms of Use also contain a choice of law provision designating “the internal
substantive laws of the State of California” as the governing body of law. App.134
¶ 10; App.140 ¶ 14. Plaintiff has not identified any material differences between
the laws of this forum and California. Without waiving the choice of law
provision, appellees do not contest the choice of law solely for purposes of this
appeal, and will cite to cases from both this forum and California when applicable.

3

4

SUMMARY OF ARGUMENT
Mr. Ligeri voluntarily accepted the Terms of Use when he created his online
accounts. The Terms of Use contain a forum selection clause requiring that any
dispute related to Mr. Ligeri’s use of YouTube be decided in California, where
YouTube is headquartered. This Court should therefore affirm the dismissal of
Mr. Ligeri’s claims because, under the forum selection clause in the Terms of Use,
Mr. Ligeri initiated his action in the wrong forum.
ARGUMENT
A. Standard of Review
The dismissal of a claim under Fed R. Civ. Proc. 12(b)(6) is reviewed de
novo. Edwards v. John Hancock Mut. Life Ins. Co., 973 F.2d 1027, 1028 (1st Cir.
1992). This same standard applies to actions dismissed under Rule 12(b)(6) based
on a forum selection clause. Lambert v. Kysar, 983 F.2d 1110, 1112 (1st Cir.
1993). However, deference is accorded to the district court’s findings of fact.
Yeboah-Sefah v. Ficco, 556 F.3d 53, 80 (1st Cir. 2009) (“the trial court made
several factual findings relevant to the instant claim to which, even when
reviewing the legal issues de novo, we are nevertheless required to defer”).

5

B. Discussion of Issues
a. The Terms of Use Constitute a Valid and Binding Agreement
Between Mr. Ligeri and YouTube.
Because Mr. Ligeri accepted YouTube’s offer for an online account,
YouTube’s Terms of Use govern the relationship between the parties. It is a basic
tenet of contract law that “a contract is formed upon acceptance of an offer.”
Alison H. v. Byard, 163 F.3d 2 (1st Cir. 1998). Under Massachusetts law, “[w]here
the wording of the contract is unambiguous, the contract must be enforced
according to its terms.” Edmonds v. United States, 642 F.2d 877, 881 (1st
Cir.1981); see also Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009) (plain
language of contract should be given effect). Absent fraud, it is of little
consequence whether the offeree actually read the terms of the agreement which he
voluntarily signed. Farrell v. Chandler, Gardner & Williams, Inc., 252 Mass. 341,
345 (Mass. 1925) (plaintiff bound by agreement, given to her “folded over,” which
she signed but did not read); Commerce Bank & Trust Co. v. Hayek, 46 Mass. App.
Ct. 687, 693 (1999) (co-signor on promissory note bound to note he voluntarily
signed but did not examine); see also Powers v. Dickson, Carlson & Campillo, 54
Cal. App. 4th 1102, 1109 (Cal. App. 2 Dist. 1997) (plaintiff bound by arbitration
agreement she did not read or fully understand).

6

Despite his current contentions to the contrary, Mr. Ligeri entered into a
valid contract with Appellees, and thus he should be held to its terms. 4 In 2006
and 2007, when Mr. Ligeri created his primary YouTube accounts, the sign up
process explicitly required agreement to the Terms of Use before hitting the “Sign
Up” button. App.270 ¶ 4 (“both the March 2006 and March 2007 account creation
pages expressly require the account holder to ‘agree to the terms of use and privacy
policy’ in order to create a YouTube account”) (underline in original). Thus, when
Mr. Ligeri initiated his accounts, he voluntarily entered into a contract with
YouTube, embodied in the Terms of Use.
Even Mr. Ligeri’s own statements at the district court hearing affirmed the
existence of a binding contract between the parties. Mr. Ligeri acknowledged that
he signed up for YouTube accounts. App.297:1-13; see also App.8 ¶ 1.1(b). He
further conceded that “I agree to the terms of use” is on the sign-up screen.
App.297:1-16. Finally, he admitted that “you have to click the signup button” to
proceed further with creating an account and submitting videos. App.298:12-19.
Given Mr. Ligeri’s own admissions, the district court was entirely correct to state,

Online agreements are subject to traditional interpretations of contract law. See
Register.com Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004) (“While new
commerce on the Internet has exposed courts to many new situations, it has not
fundamentally changed the principles of contract. It is standard doctrine that when
a benefit is offered subject to stated conditions, and the offeree makes a decision to
take the benefit with knowledge of the terms of the offer, the taking constitutes an
acceptance of terms, which accordingly become binding on the offeree.”).
4

7

“[f]rankly, I can’t see any way to say that you’re not subject to the terms of use
here.” App.299: 3-5. Thus, Mr. Ligeri should be held to the requirements of the
contract that require the case to be adjudicated in California.
b. Mr. Ligeri’s Claims That He Did Not Accept the Contract Lack
Merit.
Mr. Ligeri’s opening appellate letter protests the district court’s decision on
various grounds, each of which lack merit. Mr. Ligeri claims that he should not be
bound to the contract because he did not read the Terms of Use before creating his
multiple accounts. Appellant’s Opening Brief (AOB) at 1-2; see also App.297:2123. However, failure to read an agreement does not exempt a party from his
obligations. Commerce Bank, supra, 46 Mass. App. Ct. at 693; Stewart v. Preston
Pipeline, Inc., 134 Cal. App. 4th 1565, 1587 (Cal.App. 6 Dist. 2005) (“Plaintiff’s
opposition – based upon nothing more than his claim that he had not read or
understood the agreement before signing it – raised no triable issue on the question
of mutual assent.”); see also Feldman v. Google, Inc, 513 F.Supp.2d 229 (E.D.
Penn. 2007) (“failure to read an enforceable clickwrap agreement, as with any
binding contract, will not excuse compliance with its terms”).
Mr. Ligeri also suggests that the Terms of Use were hidden from him and
that he was forced to “click it without reading it.” AOB at 2. This allegation also
lacks merit. It was rejected by the District Court and contradicts Ligeri’s
statements at the hearing in which he admitted that the express language signifying
8

agreement to the Terms of Use was on the account creation screen when Mr. Ligeri
chose to create his accounts. App.297:1-16. 5 Additionally, the unrebutted
evidence shows that a hyperlink to the “terms of use” was just above the “Sign Up”
button when Mr. Ligeri created his accounts and that this link directly connected
the user to the Terms of Use in effect. See App.270 ¶ 4 (“The code for the account
creation pages as of March 2006 and March 2007 provides a link to the thenexisting Terms of Use. The Terms of Use are linked to from the phrase “terms of
use” on the account creation page.”). The unrebutted evidence also shows that a
user cannot create a YouTube account without first going through the account
creation page and without first having to “agree to the terms of use.” Id. (“As
shown by Exhibit A and B, both the March 2006 and March 2007 account creation
pages expressly require the account holder to “agree to the terms of use and
privacy policy” in order to create a YouTube account”). And, there are no
allegations or evidence that Mr. Ligeri was coerced into creating YouTube
accounts. Rather, all Mr. Ligeri’s allegations suggest that he willingly, even
enthusiastically, created YouTube accounts and submitted the video content that is
the subject of his claims against YouTube. App.14 ¶ 3.7; App.17 ¶ 3.18.

At the hearing, after admitting that the hyperlink connecting a prospective user to
the Terms of Use was on the relevant sign-up screen, Mr. Ligeri then averred that
he could not recall whether the language was on the screen when he signed up for
his account. App.297:14-20. The Court concluded that it was. App.297:21-23.

5

9

Mr. Ligeri’s theories that he should not be bound to the Terms of Use were
soundly rejected in a similar case, Feldman v. Google, 513 F.Supp.2d 229
(E.D.Penn. 2007). In Feldman, the plaintiff claimed that a forum selection clause
in Google’s AdWords agreement was unenforceable because he did not assent to
the terms of an online agreement. Id. at 235. To open an AdWords account,
Feldman had to go through a series of steps in a sign-up process, which included
agreement to a set of terms and conditions. Id. at 233. The court dismissed
Feldman’s argument that there was no meeting of the minds because “a reasonably
prudent internet user would have known of the existence of terms in the AdWords
Agreement.” Id. at 238. Further, Feldman’s “failure to read the Agreement, if that
were the case, does not excuse him from being bound by his express agreement.”
Id. Thus the court enforced the forum selection clause in the AdWords agreement
and transferred the case to the agreed-upon forum. Id. at 249.
Similarly, Ligeri had reasonable notice of the Terms of Use. The underlined
hyperlink was just above the “Sign Up” button. See App.270-276. That Ligeri
may have chosen not to read the applicable terms does not release him from
abiding by the forum selection clause contained within that agreement. See
Feldman, supra, 513 F.Supp.2d at 249.
By his own account, Mr. Ligeri has been able to share his videos with
millions of viewers, free of charge, on YouTube.com. App.66 ¶ 13.52. Mr. Ligeri

10

has thus taken advantage of the benefits of his relationship with YouTube, and
despite his current protests, he should be held to the Terms of Use governing that
relationship.
c. The District Court Properly Dismissed Mr. Ligeri’s Claims Based
on the Forum Selection Clause
Because Mr. Ligeri accepted the Terms of Use, the district court was correct
to enforce the forum selection clause contained within that agreement. Forum
selection clauses are routinely enforced as long as the terms are reasonable.
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) (upholding the validity
of a reasonable forum selection clause on the back of a passenger’s ticket ); Silva v.
Encyclopedia Britannica, Inc., 239 F.3d 385 (1st Cir. 2001) (enforcing boilerplate
forum selection clause in employment contract that was not unreasonable nor
unjust despite unequal bargaining power); Hughes v. McMenamon, 204 F.Supp.2d
178 (D.Mass. 2002) (dismissal of claims based on a reasonable forum selection
clause in AOL’s online agreement); Smith, Valentino & Smith, Inc. v. Superior Ct.,
17 Cal.3d 491, 496 (Cal. 1976) (forum selection clauses are valid and enforceable
absent a showing that the clause is unreasonable).
Mr. Ligeri has not brought forth any evidence or allegations that the forum
selection clause in the Terms of Use is unreasonable. Moreover, the Northern
District of California provides a sufficient forum where Mr. Ligeri’s claims could
be fairly and adequately heard. See Cambridge Biotech Corp. v. Pasteur Sanofi
11

Diagnostics, 433 Mass. 122, 130-131 (Mass. 2000) (“[A]ction brought contrary to
selected forum will generally be dismissed ‘unless the plaintiff shows that the
chosen forum is no longer available or could not be expected to grant him a fair
hearing.’”).
Furthermore, a number of other courts that have considered Appellees’
mandatory forum selection clauses have dismissed or transferred actions where
plaintiffs brought suits outside of California. See Bowen v. YouTube, No. C08-505
OFDB 2008 WL 1757578 (W.D. Wash. 2008) (dismissed action of pro se plaintiff
based on same forum selection clause at issue here); Person v. Google Inc., 456
F.Supp.2d 488 (S.D.N.Y. 2006) (transfer of complaint to Northern District of
California based on Google’s AdWords agreement); Digital Envoy, Inc. v. Google
Inc., 319 F.Supp.2d 1377 (N.D. Ga. 2004) (motion to transfer granted based on
forum selection clause); Feldman, supra, 513 F.Supp.2d 229 (transferring matter to
Northern District of California based on Google’s AdWords agreement).
There is nothing materially distinguishable about the forum selection clause
in this case. Like the cases cited above, the Terms of Use require Mr. Ligeri to file
in the Northern District of California, which is the court of competent jurisdiction
for San Mateo County. App.127 ¶ 4. The district court properly dismissed the
case on this basis after Mr. Ligeri refused the opportunity to transfer his case to
California.

12

CONCLUSION
Mr. Ligeri’s opening appellate letter suggests that “the effect of Judge
Woodlock’s ruling at the Massachusetts trial court level would be to destroy all
contract law issued by the United States Supreme Court and replace it with utter
tyranny.” AOB at 2. In fact, the district court did nothing more than uphold basic
tenets of contract law that parties are bound by their agreements, regardless of
whether they later decide that they do not like the terms. Appellees respectfully
request that the Court follow those principles and affirm the district court’s
decision.
Respectfully submitted,

/s/
Michael A. Berta (1134560)
Anne Marie Nicpon (1134686)
WILSON SONSINI GOODRICH & ROSATI, PC

One Market
Spear Tower, Ste. 3300
San Franicsco, California 94105
Tel: [phone]
Attorneys for Defendants-Appellees

13

Certificate of Compliance With Type-Volume Limitation, Typeface
Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(B) because this brief contains 2754 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief
has been prepared in a proportionally spaced typeface using Microsoft
Office Word 2003 in Times New Roman font size 14.

/s/
Anne Marie Nicpon
Wilson Sonsini Goodrich & Rosati, PC

One Market
Spear Tower, Ste. 3300
San Franicsco, California 94105
Tel: [phone]
Fax: [phone]
Dated: May 21, 2009

Certificate of Service
I hereby certify that on May 21, 2009, a true copy of the foregoing was
served on Plaintiff/Appellant Benjamin Ligeri via overnight mail. An additional
copy was sent electronically addressed to [e-mail].

/s/
Anne Marie Nicpon
Mr. Benjamin Ligeri
39 Wheaton Ave.
Rehoboth, MA 02769

14