SONG FI, INC. v. GOOGLE, INC. et al

Filing 53

ORDER by Judge Samuel Conti granting 26 motion to dismiss and denying 32 partial motion for summary judgment. Leave to amend is granted in part. Plaintiffs shall file any amended complaint within thirty (30) days. (sclc2, COURT STAFF) (Filed on 6/10/2015).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SONG FI INC., JOSEPH N.
BROTHERTON, LISA M. PELLEGRINO,
N.G.B., a minor, RASTA ROCK, INC.,
D/B/A "THE RASTA ROCK OPERA,"

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For the Northern District of California

United States District Court

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Plaintiffs,
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v.

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GOOGLE, INC., YOUTUBE LLC,

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Defendants.

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Case No. 14-5080 SC
ORDER GRANTING MOTION TO
DISMISS AND DENYING MOTION
FOR PARTIAL SUMMARY
JUDGMENT

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I.

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INTRODUCTION
This case concerns the removal and relocation of a music

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video, "Luv ya Luv ya Luv ya" (or simply "Luv ya"), on Defendant

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YouTube's1 video-sharing website.

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music production company, N.G.B., a six-year old boy, his parents,

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Joseph Brotherton and Lisa Pellegrino, and the Rasta Rock Opera, a

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Plaintiffs Song fi, Inc., a

YouTube is a wholly-owned subsidiary of Defendant Google. FAC ¶
7. Nevertheless, these motions concern only YouTube's conduct, its
video-sharing service, and terms of service. Thus, for clarity the
Court treats this motion as if there were only one defendant,
YouTube.

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music group, worked together to conceive, record, and produce "Luv

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ya," and post it on YouTube.

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removed its video, because (at least according to a notice posted

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in the video's place) its "content violated YouTube's Terms of

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Service," YouTube violated consumer protection laws, breached

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express or implied contracts, and committed both libel and tortious

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interference.

See ECF No. 13 ("FAC" or "Complaint") at ¶ 34.

Now before the Court are several potentially dispositive

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Plaintiffs allege that when YouTube

motions.

First, YouTube moves to dismiss the Complaint, arguing

United States District Court

For the Northern District of California

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Plaintiffs' claims are barred by the Communications Decency Act, 47

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U.S.C. Section 230(c)(2)(A), or contract.

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Plaintiffs oppose the motion to dismiss, ECF No. 37 ("MTD Opp'n"),

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and have moved for partial summary judgment in their own right,

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arguing the Court should find as a matter of law that YouTube's

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notice was libel per se.

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fully briefed and appropriate for resolution without oral argument

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under Civil Local Rule 7-1(b).

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Opp'n"), 48 ("MSJ Reply").

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YouTube's motion to dismiss is GRANTED while Plaintiffs' motion for

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partial summary judgment is DENIED.

ECF No. 26 ("MTD").

ECF No. 32 ("MSJ").

Both motions are

ECF Nos. 38 ("MTD Reply"), 41 ("MSJ

For the reasons set forth below,

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II.

BACKGROUND
"Luv ya" is a music video by the Rasta Rock Opera featuring

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the dramatized tale of a five-year-old boy (played by Plaintiff

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N.G.B.) and five-year-old girl who dress up and go to a restaurant

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for lunch on Valentine's Day.

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guitarist and a trumpet player (played by Plaintiff Joseph

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Brotherton, N.G.B.'s father and the president of both Song fi and

As the children eat their lunch, a

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Rasta Rock Opera) serenade them.

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uploaded it to YouTube, in the process agreeing to YouTube's Terms

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of Service.

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to a currently-private location on Song fi's user profile, the

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video is no longer publicly accessible on YouTube.

Nevertheless,

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the video is still available on Song fi's website.

See The Rasta

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Rock Opera, Luv ya Luv ya Luv ya, Song fi,

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http://songfi.com/beta/wp-content/uploads/2015/03/Luv-ya-Luv-ya-

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Luv-ya.mp4.

United States District Court

Since YouTube removed "Luv ya" and later relocated it

YouTube maintains a view count, visible to users next to each

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For the Northern District of California

Song fi produced "Luv ya" and

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video, for all videos accessible on its site.

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reflects "the number of times YouTube believes users . . .

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legitimately requested to view the video."

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Hushion Decl.") at ¶ 7.

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appear more popular than they actually are, some users or promoters

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artificially inflate their view counts by using "'robots,'

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'spiders,' or 'offline readers,' that access [a video] in a manner

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that sends more request messages to YouTube servers in a given

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period of time than a human can reasonably produce in the same

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period by using a conventional on-line web browser."

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8-3 ("First Hushion Decl.") at Ex. 1 ("Terms of Service") § 4(h).2

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In an effort to maintain the legitimacy of its view counts,

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YouTube's Terms of Service, to which all users must agree in order

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to post videos, prohibit the use of such methods.

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Terms of Service also incorporate by reference YouTube's Community

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The view count

ECF No. 41-1 ("Second

However, in an effort to make their videos

See ECF No.

See id.

The

YouTube's Terms of Service are incorporated by reference in the
Complaint, see, e.g., FAC ¶¶ 15, 26-27, 35, and thus are
appropriately considered on a motion to dismiss. See In re Calpine
Corp. Sec. Litig., 288 F. Supp. 2d 1054, 1076 (N.D. Cal. 2003).

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Guidelines, which prohibit, among other things, uploading videos

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with pornographic, obscene, or otherwise objectionable content.
During the two months after Song fi posted "Luv ya," the

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video's view count rose to over 23,000, the link to the video was

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posted on Song fi's and Rasta Rock's social media pages, and the

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video was featured in various promotions.

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"Luv ya" was first posted, YouTube pulled the plug, removing the

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video from its website and posting in its place a notice that

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"[t]his video has been removed because its content violated

But, two months after

United States District Court

For the Northern District of California

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YouTube's Terms of Service."

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reposted the video to a new location (currently private) without

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its view count, "likes," or comments.

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YouTube later explained that it removed the video because it

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determined the view count for "Luv ya" was inflated through

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automated means, and thus violated its Terms of Service.

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37.

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and allege that the removal and relocation of the video as well as

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the notice's statement that the video's "content" violated the

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Terms of Service harmed Song fi's business and efforts to obtain

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funding, caused Nike to cancel a performance by the Rasta Rock

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Opera, and personally injured N.G.B. and his father.

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See FAC ¶ 34. Subsequently, YouTube

Plaintiffs protested, and

Id. at ¶

Plaintiffs deny any involvement in any view count inflation,

As a result, Plaintiffs brought suit, initially in the United

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States District Court for the District of Columbia.

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The case was transferred to this District after Judge Collyer

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granted a motion to transfer under Federal Rule of Civil Procedure

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12(b)(3) pursuant to the forum selection clause in YouTube's Terms

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of Service.

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contractually selected venue, YouTube has filed a motion to dismiss

See ECF No. 19 ("Transfer Order").

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See ECF No. 1.

Now in this, the

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and Plaintiffs a motion for partial summary judgment, seeking to

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resolve all or part of Plaintiffs' claims.

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III. LEGAL STANDARDS

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A.

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

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A motion to dismiss under Federal Rule of Civil Procedure

Block, 250 F.3d 729, 732 (9th Cir. 2001).

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on the lack of a cognizable legal theory or the absence of

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United States District Court

12(b)(6) "tests the legal sufficiency of a claim."

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For the Northern District of California

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Navarro v.

sufficient facts alleged under a cognizable legal theory."

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1988).

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should assume their veracity and then determine whether they

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plausibly give rise to an entitlement to relief."

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Iqbal, 556 U.S. 662, 679 (2009).

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must accept as true all of the allegations contained in a complaint

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is inapplicable to legal conclusions.

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elements of a cause of action, supported by mere conclusory

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statements, do not suffice."

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Twombly, 550 U.S. 544, 555 (2007)).

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complaint must be both "sufficiently detailed to give fair notice

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to the opposing party of the nature of the claim so that the party

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may effectively defend against it" and "sufficiently plausible"

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such that "it is not unfair to require the opposing party to be

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subjected to the expense of discovery."

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1202, 1216 (9th Cir. 2011).

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///

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///

"Dismissal can be based

"When there are well-pleaded factual allegations, a court

Ashcroft v.

However, "the tenet that a court

Threadbare recitals of the

Id. (citing Bell Atl. Corp. v.

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The allegations made in a

Starr v. Baca, 652 F.3d

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B.

Federal Rule of Civil Procedure 56

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Entry of summary judgment is proper "if the movant shows that

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there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law."

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56(a).

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require a directed verdict for the moving party.

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Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).

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without the ultimate burden of persuasion at trial—usually, but not

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always, a defendant—has both the initial burden of production and

Fed. R. Civ. P.

Summary judgment should be granted if the evidence would
Anderson v.

"A moving party

United States District Court

For the Northern District of California

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the ultimate burden of persuasion on a motion for summary

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judgment."

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Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos.,

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IV.

DISCUSSION
The Court addresses YouTube's motion to dismiss first, before

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turning to Plaintiffs' motion for partial summary judgment.

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A.

Motion to Dismiss

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Plaintiffs' Complaint alleges five causes of action: (1)

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libel, (2) breach of express contract, (3) breach of implied

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contract, (4) tortious interference, and (5) violations of the D.C.

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Consumer Protection Procedures Act ("CPPA"), D.C. Code Section 28-

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3904.

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YouTube argues it has statutory immunity from the breach

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claims under the Communications Decency Act, 47 U.S.C. Section

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230(c)(2)(A).

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contends these claims fail because it was authorized to relocate

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the video by its Terms of Service.

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claims stemming from its notice fail because the notice is true,

Furthermore, even if it is not immunized, YouTube

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Similarly, YouTube argues the

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Plaintiffs have inadequately pleaded various elements of their

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tortious interference claims, and the CPPA claims should be

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dismissed because the Terms of Service provide that California law

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governs.

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The Court will address the statutory immunity argument first

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before turning to the contract and implied contract claims, libel,

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tortious interference, and finally, CPPA claims.

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1.

Communications Decency Act Section 230(c)

As a threshold matter, YouTube argues it is entitled to

United States District Court

For the Northern District of California

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statutory immunity from Plaintiffs' breach of contract and tortious

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interference claims because "Luv ya" and its allegedly artificially

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inflated view count are "otherwise objectionable" within the

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meaning of Section 230(c)(2) of the Communications Decency Act.

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See 47 U.S.C. § 230(c)(2).

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neither the plain meaning of "otherwise objectionable" nor the

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context, purpose, or history of the Communications Decency Act

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support YouTube's interpretation of "otherwise objectionable,"

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YouTube is not entitled to statutory immunity from Plaintiffs'

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breach of contract or tortious interference claims.

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However, because the Court finds

Section 230(c), entitled "Protection for 'Good Samaritan'
blocking and screening of offensive material" states that:
No provider or user of an interactive computer
service shall be held liable on account of --

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(A)
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any action voluntarily taken in good
faith to restrict access to or
availability of material that the
provider considers to be obscene,
lewd, lascivious, filthy, excessively
violent,
harassing,
or
otherwise
objectionable, whether or not such
material
is
constitutionally
protected . . . .

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Id.

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Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003), and the

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Ninth Circuit has counseled that all doubts should be resolved in

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favor of immunity.

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F.3d 1157, 1174 (9th Cir. 2008).

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This language provides "a 'robust' immunity," Carafano v.

Fair Housing Council v. Roommates.com, LLC, 521

When interpreting a statute, the Court must give words "their

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'ordinary or natural' meaning."

See United States v. TRW Rifle

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7.62X51mm Caliber, One Model 14 Serial 593006, 447 F.3d 686, 689

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(9th Cir. 2006) (quoting Leocal v. Ashcroft, 543 U.S. 1, 8-9

United States District Court

For the Northern District of California

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(2004)).

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objectionable," the Court "'follow[s] the common practice of

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consulting dictionary definitions to clarify [its] original

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meaning[]' and look to how the terms were used 'at the time [the

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Communications Decency Act] was adopted.'"

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States v. Carter, 421 F.3d 909, 911 (9th Cir. 2005).

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dictionary definition of the term "objectionable" at the time

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Congress enacted the Communications Decency Act was "undesirable,

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offensive."

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1984).

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Because Congress did not define the phrase "otherwise

Id. (quoting United
The

Webster's Ninth New Collegiate Dictionary 814 (9th ed.

Nevertheless, meaning is not determined in the abstract, and

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the Court must look to whether these definitions are consistent

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with the context of the Communications Decency Act.

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447 F.3d at 690; see also Pac. Gas & Elec. Co. v. G.W. Thomas

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Drayage & Rigging Co., 442 P.2d 641 (Cal. 1968) (Traynor, J.) ("The

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meaning of particular groups of words varies with the verbal

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context and surrounding circumstances . . . .

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meaning apart from these factors; much less does it have an

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objective meaning, one true meaning.") (internal quotation marks

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See TRW Rifle,

A word has no

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and alterations omitted).

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evidence Congress did not intended "otherwise objectionable" to

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refer to (as YouTube believes) anything which it finds undesirable

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for any reason.

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Here, the context provides additional

First, when a statute provides a list of examples followed by

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a catchall term (or "residual clause") like "otherwise

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objectionable," the preceding list provides a clue as to what the

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drafters intended the catchall provision to mean.

See Circuit City

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Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001).

This is the

United States District Court

For the Northern District of California

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rationale for the canon of construction known as eiusdem generis

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(often misspelled ejusdem generis), which is Latin for "of the same

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kind."

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2010) (Posner, J.); see also Antonin Scalia & Bryan A. Garner,

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Reading Law: The Interpretation of Legal Texts 199-213 (2012)

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(discussing this canon at length).

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"otherwise objectionable," --

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excessively violent, [and] harassing . . ." -- it is hard to

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imagine that the phrase includes, as YouTube urges, the allegedly

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artificially inflated view count associated with "Luv ya."

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contrary, even if the Court can "see why artificially inflated view

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counts would be a problem for . . . YouTube and its users," MTD

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Reply at 3, the terms preceding "otherwise objectionable" suggest

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Congress did not intend to immunize YouTube from liability for

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removing materials from its website simply because those materials

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pose a "problem" for YouTube.

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08-2738 JF (PVT), 2008 WL 5245490, at *6 (N.D. Cal. Dec. 17, 2008)

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(finding that information "relat[ing] to business norms of fair

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play and transparency are . . . beyond the scope of § 230(c)(2)");

See United States v. Taylor, 620 F.3d 812, 814 (7th Cir.

Given the list preceding

"obscene, lewd, lascivious, filthy,

On the

See Goddard v. Google, Inc., No. C

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Nat'l Numismatic Cert., LLC v. eBay, Inc., No. 6:08-cv-42-Orl-

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19GJK, 2008 WL 2704404, at *25 (M.D. Fla. July 8, 2008)

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(concluding, based in part on eiusdem generis, that Congress did

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not intend "otherwise objectionable" to refer to auction of

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potentially counterfeited coins).

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Similarly, both the context in which "otherwise objectionable"

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appears in the Communications Decency Act and the history and

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purpose of the Act support this reading.

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"Protection for 'Good Samaritan' blocking and screening of

Section 230 is captioned

United States District Court

For the Northern District of California

10

offensive material," yet another indication that Congress was

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focused on potentially offensive materials, not simply any

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materials undesirable to a content provider or user.

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Section 230(c) (emphasis added); see Doe v. GTE Corp., 347 F.3d

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655, 659-60 (7th Cir. 2003) (interpreting Section 230(c) in light

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of this caption); see also Fair Housing Council, 521 F.3d at 1163-

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64 (citing Doe and a subsequent Seventh Circuit decision discussing

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the caption with approval).

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immunity to content-providers and users for blocking or screening

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of offensive materials was (1) to eliminate liability for internet

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content-providers that serve as intermediaries for others' messages

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and (2) to eliminate disincentives for content-providers like

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YouTube to self-regulate by blocking or screening offensive

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materials.

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Cir. 1997) (discussing these purposes and a New York Supreme Court

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case, Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL

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323710 (N.Y. Sup. Ct. May 24, 1995), which Congress intended to

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supersede by adopting Section 230); see also Batzel v. Smith, 333

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F.3d 1018, 1026-30 (9th Cir. 2003) (restating Congress's concerns

47 U.S.C.

Second, Congress's purpose in granting

See Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th

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that "[i[f efforts to review and omit third-party defamation,

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obscene or inappropriate material make a computer service provider

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or user liable for posted speech, then website operators and

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Internet service providers are likely to abandon efforts to

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eliminate such material from their site.").

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Nothing about this interpretation is inconsistent with other

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portions of the text of Section 230(c)(2).

YouTube complains that

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Section 230(c)(2) specifically allows service providers like

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YouTube to restrict access to or block material "that the provider

United States District Court

For the Northern District of California

10

or user considers to be . . . otherwise objectionable," and there

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is no doubt it considers an inflated view count to be

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objectionable.

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YouTube concludes that "CDA immunity . . . applies regardless of

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whether the material actually is objectionable in some objective

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way, and regardless of whether anyone other than the service

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provider might consider it objectionable."

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fact that the statute requires the user or service provider to

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subjectively believe the blocked or screened material is

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objectionable does not mean anything or everything YouTube finds

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subjectively objectionable is within the scope of Section 230(c).

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On the contrary, Judge Fisher on the Ninth Circuit expressed

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concern that such an "unbounded" reading of "otherwise

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objectionable" would enable content providers to "block content for

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anticompetitive purposes or merely at its malicious whim, under the

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cover of considering such material 'otherwise objectionable.'"

26

Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1178 (9th Cir.

27

2009) (Fisher, J., concurring).

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47 U.S.C. § 230(c)(2) (emphasis added).

Reply at 3.

Thus,

But the

See

While the Court does not believe YouTube's decision to remove

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and relocate "Luv ya" was malicious or anticompetitive, the Court

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also does not believe the removal and relocation of "Luv ya" was

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the kind of self-regulatory editing and screening that Congress

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intended to immunize in adopting Section 230(c).

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declines to adopt YouTube's completely subjective (and entirely

6

unbounded) reading of these provisions.

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ordinary meaning of "otherwise objectionable," as well as the

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context, history, and purpose of the Communications Decency Act all

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counsel against reading "otherwise objectionable" to mean anything

Thus, the Court

On the contrary, the

United States District Court

For the Northern District of California

10

to which a content provider objects regardless of why it is

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objectionable.3

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1129, 1138 (S.D. Cal. 2014) ("The Court declines to broadly

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interpret 'otherwise objectionable' material to include any or all

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information or content.").

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count associated with "Luv ya" is not "otherwise objectionable"

16

within the meaning of Section 230(c)(2), YouTube is not entitled to

17

immunity from Plaintiffs' contract or tortious interference claims.
2.

18

See also Sherman v. Yahoo! Inc., 997 F. Supp. 2d

Because the allegedly inflated view

Breach of Contract and Breach of the Implied
Covenant of Good Faith and Fair Dealing

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Although YouTube is not entitled to immunity from Plaintiffs'

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21

claims based on the relocation of "Luv ya," it nonetheless argues

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3

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While YouTube cites several cases concluding efforts to block or
filter "spam" emails were immunized from liability because spam is
"otherwise objectionable," these authorities are distinguishable.
A content provider or user could easily conclude that spam emails
are "harassing" within the meaning of the Act or are similar enough
to harassment as to fall within the catchall "otherwise
objectionable." See Holomaxx Techs. v. Microsoft Corp., 783 F.
Supp. 2d 1097, 1104 (N.D. Cal. 2011); e360Insight, LLC v. Comcast
Corp., 546 F. Supp. 2d 605, 607-08 (N.D. Ill. 2008). Unlike spam,
however, the text, context, history, and purposes of the
Communications Decency Act do not support reading "otherwise
objectionable" to encompass the allegedly inflated view count
associated with "Luv ya."

12

1

that Plaintiffs' contract claims fail because the Terms of Service

2

(to which all users must agree to post a video) authorize it to

3

relocate or remove videos in its sole discretion.

4

believes (as did Judge Collyer, who handled the case while it was

5

venued in Washington, D.C.) that YouTube's Terms of Service are

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inartfully drafted, YouTube is correct.

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unambiguously reserve to YouTube the right to determine whether

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"Content violates these Terms of Service" and, "at any time,

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without prior notice and in its sole discretion, remove such

While the Court

The Terms of Service

United States District Court

For the Northern District of California

10

Content . . . ."

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(defining "Content").

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YouTube to "discontinue any aspect of the Service at any time."

13

Id. at § 4.J; see also §§ 1.A; 2.A (defining "Service").

14

whether "Luv ya" and the associated view count are deemed aspects

15

of YouTube's "Service" or are "Content" within the meaning of the

16

Terms of Service (an issue to which the parties devote significant

17

attention) is immaterial.

18

permitted YouTube to remove "Luv ya" and eliminate its view count,

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likes, and comments.

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Terms of Service at § 7.B; see also id. at § 2.A
Elsewhere, the Terms of Service also allow

Thus,

Either way, the Terms of Service

As a result, Plaintiffs cannot state a claim for breach of the

21

Terms of Service in removing the video, because conduct authorized

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by a contract cannot give rise to a claim for breach of the

23

agreement.

24

826 P.2d 710, 728 (Cal. 1992); see also FAC ¶ 62.

25

Plaintiffs cannot state a claim for breach of the implied covenant

26

of good faith and fair dealing, because "if defendants were given

27

the right to do what they did by the express provisions of the

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contract there can be no breach."

See Carma Dev. (Cal.) Inc. v. Marathon Dev. Cal., Inc.,

13

Similarly,

Carma, 826 P.2d at 728 (citing

1

VTR, Inc. v. Goodyear Tire & Rubber Co., 303 F. Supp. 773, 777-78

2

(S.D.N.Y. 1969)).

3

the relocation (as opposed to the removal) of the video is the

4

source of a cause of action for breach of contract or breach of the

5

implied covenant, those claims fail under the agreement as well

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because the specific location of a video is an aspect of YouTube's

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"Service" that it retains the right to discontinue at any time.

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See Terms of Service at §§ 1.A; 2.A; 4.J.

9

Further, to the extent Plaintiffs allege that

Accordingly, YouTube's motion to dismiss Plaintiffs' claims

United States District Court

For the Northern District of California

10

for breach of contract and breach of the implied covenant of good

11

faith and fair dealing is GRANTED.

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finds YouTube's Terms of Service unambiguously foreclose these

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claims, granting leave to amend would be futile.

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Davis, 371 U.S. 178, 182 (1962).

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DISMISSED WITH PREJUDICE.

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3.

Furthermore, because the Court

See Foman v.

As a result, these claims are

Libel

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Even if YouTube had the authority to relocate or remove

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Plaintiffs' video, Plaintiffs allege that the statement YouTube

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posted after removing "Luv ya" was libelous.

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video, YouTube posted a notice in its place stating that "[t]his

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video has been removed because its content violated YouTube's

22

Terms of Service."

23

After removing the

FAC at ¶ 34.

YouTube argues because this statement is true, Plaintiffs

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cannot state a claim for libel.

See Melaleuca, Inc. v. Clark, 66

25

Cal. App. 4th 1344, 1353 (Cal. Ct. App. 1998) ("An essential

26

element of libel . . . is that the publication in question must

27

contain a false statement of fact . . . .") (emphasis in

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original).

The Court must assess the truth or falsity of

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1

YouTube's notice "according to natural and popular construction

2

[of the notice] . . . not so much by its effect when subjected to

3

the critical analysis of a mind trained in the law, but by the

4

natural and probable effect upon the mind of the average reader."

5

Id. at 1353-54 (internal citations and quotation marks omitted).

6

In arguing that the notice it posted was true and thus not

same meaning as "Content" in its Terms of Service.

9

understand what that meant, a visitor would have to read through

10

United States District Court

actionable, YouTube argues that "content" in its notice has the

8

For the Northern District of California

7

the Agreement and would recognize that YouTube merely determined

11

that the 'Content' violated one of the numerous prohibitions in

12

YouTube's governing documents, most of which have nothing to do

13

with violence or obscenity."

14

to apply "the critical analysis of a mind trained in the law" to

15

the meaning of the allegedly defamatory notice, that argument

16

might hold water.

17

However, the Court must assess the notice from the perspective of

18

an average reader.

19

notice might refer to the Terms of Service to determine what sorts

20

of things "violate[] the Terms of Service," an average reader

21

would not refer to the Terms of Service for a definition of

22

"content" because "content" is a word in common use with a plain

23

and ordinary meaning.

24

Mot. at 15.

Thus, "[t]o

If the Court's task was

See Melaleuca, 66 Cal. App. 4th at 1353-54.

While the average reader encountering this

Furthermore, even if the Court were to conclude an average

25

reader would regard "content" as having the same meaning in both

26

the Terms of Service and the notice posted in place of "Luv ya,"

27

it is by no means certain that the view count associated with "Luv

28

ya" even falls within the Terms of Service's definition of

15

1

"Content."

Compare Terms of Service § 1.A (defining "Service" to

2

include "YouTube products . . . and services provided to you on,

3

from, or through the YouTube Website"), and id. at § 2.A (defining

4

"Service" as including "all aspects of YouTube, including but not

5

limited to all . . . services offered via the YouTube website"),

6

with id. at § 2.A (defining "Content" to include "text, . . .

7

interactive features and other materials you may view on, access

8

through, or contribute" to YouTube).

9

not decide today whether "Content" under the Terms of Service

Thus, while the Court need

United States District Court

For the Northern District of California

10

encompasses the view count associated with each video, at least

11

one potential interpretation of the Terms would classify the view

12

count as part of the "Service," not "Content."

13

("Hr'g Tr.") at 36:02-36:10.

14

See ECF No. 12

Despite the shortcomings of this argument, as discussed more

15

fully below, the Court finds that YouTube's allegedly libelous

16

statement is not libelous on its face (or "libel per se").

17

Instead, to the extent Plaintiffs have an actionable libel claim it

18

is a claim for libel per quod.

19

(distinguishing between "libel on its face" and "[d]efamatory

20

language not libelous on its face"); see also Palm Springs Tennis

21

Club v. Rangel, 73 Cal. App. 4th 1, 5-6 (Cal. Ct. App. 1999) ("If a

22

defamatory meaning appears from the language itself without the

23

necessity of explanation or the pleading of extrinsic facts, there

24

is libel per se," however, "[i]f . . . the defamatory meaning would

25

appear only to readers who might be able to recognize it through

26

some knowledge of specific facts . . . not discernable from the

27

face of the publication, . . . then the libel cannot be libel per

28

se but will be libel per quod.") (citation omitted).

See Cal. Civ. Code § 45a

16

Claims for

1

libel per quod require a plaintiff to plead that he suffered

2

"special damages."

3

libelous on its face is not actionable unless the plaintiff alleges

4

and proves that he has suffered special damages as a proximate

5

result thereof."); Newcombe v. Adolf Coors Co., 157 F.3d 686, 695

6

(9th Cir. 1998); see also Cal. Civ. Code § 48a(4)(b) (defining

7

"special damages").
Because Plaintiffs have not pleaded special damages, their

8
9

United States District Court

For the Northern District of California

10

Cal. Civ. Code § 45a ("Defamatory language not

libel claims are DISMISSED.

Leave to amend as to the libel claim

is GRANTED.
4.

11

Tortious Interference

Next, Plaintiffs allege that YouTube tortiously interfered

12
13

with Song fi and Rasta Rock's business relationships when it

14

removed and relocated "Luv ya" and posted the notice stating its

15

content violated YouTube's Terms of Service.

16

Plaintiffs allege that Rasta Rock and Song fi featured "Luv ya" in

17

its attempt "to secure a sponsorship by Nike, an international

18

footwear company, of a July 4, 2014 performance of the 'Star

19

Spangled Banner'" at Nike's store in Washington, D.C.

20

While Nike gave "preliminary approval for the event," and Song fi

21

spent substantial amounts preparing for the event, the event was

22

cancelled after Nike discovered that YouTube removed "Luv ya" and

23

posted the notice that its content violated YouTube's terms of

24

service.4

Id.

Specifically,

FAC ¶ 49.

In addition, Plaintiffs allege that Song fi's

25
26
27
28

4

YouTube's argument that "Plaintiffs do not identify any specific
relationships that were allegedly disrupted," Mot. at 16,
particularly just one sentence after citing these precise
allegations, is risible. At the same time, YouTube is correct that
the references to Song fi's principal funder are vague. Plaintiffs
should provide greater detail in any amended complaint.

17

1

principal funder suspended financial support for the company after

2

"Luv ya" was removed from YouTube.

Id. at ¶ 50.

3

Under California law, a claim for tortious interference

4

requires: "(1) an economic relationship between the plaintiff and

5

some third party, with the probability of future economic benefit

6

to the plaintiff; (2) defendant's knowledge of the relationship;

7

(3) intentional acts on the part of the defendant designed to

8

disrupt the relationship; (4) actual disruption of the

9

relationship; and (5) economic harm proximately caused by the acts

United States District Court

For the Northern District of California

10

of the defendant."

11

P.3d 937, 950 (Cal. 2003).

12

YouTube's conduct was "wrongful by some legal measure other than

13

the fact of interference itself."

14

Sales, U.S.A., Inc., 902 P.2d 740, 746 (Cal. 1995) (citation and

15

emphasis omitted).

16

Korea Supply Co. v. Lockheed Martin Corp., 63
Plaintiffs must also show that

Della Penna v. Toyota Motor

YouTube's chief objections to Plaintiffs' tortious

17

interference allegations are (1) the absence of allegations of its

18

knowledge of Plaintiffs' alleged economic relationship with Nike or

19

Song fi's unnamed funder, and (2) the lack of alleged intentional

20

acts designed to disrupt that relationship.

21

allege that YouTube was notified "on May 12, 2014 that its action

22

of removing the "Luv Ya" video and leaving instead a message that

23

the video had been removed because of its content was interfering

24

with Song fi and the Rasta Rock Opera's business relationships."

25

FAC ¶ 77.

26

admission) it did not have knowledge of Plaintiffs' prospective

27

agreement with Nike at the time it posted the allegedly defamatory

28

notice, it cannot be liable for tortious interference.

However, Plaintiffs do

YouTube argues that because (by Plaintiffs' own

18

However,

1

Plaintiffs allege that YouTube refused to remove the notice stating

2

that the content of "Luv ya" violated the Terms of Service even

3

after Plaintiffs informed them that the notice was interfering with

4

their business relationships.

5

allegations as true (as the Court must for the purposes of this

6

motion), these allegations are sufficient to satisfy the knowledge

7

and intentional act requirements.

8
9

See id. at ¶ 78.

Taking Plaintiffs'

However, to allege a claim for tortious interference,
Plaintiffs must also allege that YouTube's conduct was "wrongful"

United States District Court

For the Northern District of California

10

apart from the tortious interference itself.

11

P.2d at 746.

12

instance, that would satisfy this standard.

13

Court finds Plaintiffs have not stated a claim on any of their

14

other legal theories, Plaintiffs' tortious interference claims are

15

also DISMISSED.

16

from the alleged tortious interference itself is GRANTED.
5g.

17
18

See Della Penna, 902

Were Plaintiffs able to state a claim for libel, for
However, because the

Leave to amend to plead "wrongful" conduct apart

CPPA Claims

Finally, Plaintiffs allege that YouTube's notice is actionable

19

under the D.C. Consumer Protection Procedures Act ("CPPA").

See

20

D.C. Code S 28-3901.

21

Service provides that California law governs the parties' dispute.

22

See Terms of Service Section 14.

23

similar non-California consumer protection claims based on similar

24

provisions, YouTube argues Plaintiffs' CPPA claims should be

25

dismissed.

26

1025, 1055 (N.D. Cal. 2013) (dismissing a California UCL claim

27

because the parties' mortgage agreement chose Florida law);

28

Armstrong v. Accrediting Council for Continuing Educ. & Training,

However, as YouTube points out, the Terms of

Pointing to cases dismissing

See Cannon v. Wells Fargo Bank, N.A., 917 F. Supp. 2d

19

1

980 F. Supp. 53, 59-60 (D.D.C. 1997) (dismissing a CPPA claim

2

because the choice-of-law clause in the parties' agreement selected

3

California law).

4

Plaintiffs did not respond to YouTube's argument, and thus the

5

Court need not address it.

See Stichting Pensioenfonds ABP v.

6

Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011)

7

("[I]n most circumstances, failure to respond in an opposition

8

brief to an argument put forward in an opening brief constitutes

9

waiver or abandonment in regard to the uncontested issue.")

United States District Court

For the Northern District of California

10

(internal quotation marks omitted).

Accordingly, YouTube's motion

11

is GRANTED and these claims are DISMISSED.

12

Plaintiffs wish to plead a similar California consumer protection

13

claim, leave to amend is GRANTED.

To the extent

14

B.

Motion for Summary Judgment

15

Finally, Plaintiffs have moved for partial summary judgment on

16

the grounds that YouTube's notice that "[t]his video has been

17

removed because its content violated YouTube's Terms of Service" is

18

libel per se.

19

A statement is libel per se if "a defamatory meaning appears

20

from the language itself without the necessity of explanation or

21

the pleading of extrinsic facts . . . ."

22

v. Rangel, 73 Cal. App. 4th 1, 5 (Cal. Ct. App. 1999) (citation

23

omitted); see also Cal. Civ. Code § 45a.

24

defamatory meaning of the statement is only clear through "some

25

knowledge of specific facts and/or circumstances, not discernable

26

from the face of the publication, and which are not matters of

27

common knowledge rationally attributable to all reasonable persons,

28

then libel cannot be libel per se but will be libel per quod."

20

Palm Springs Tennis Club

However, if the

1

Palm Springs, 73 Cal. App. 4th at 5 (citation omitted).
To the extent Plaintiffs have an actionable claim for libel it

2
3

is for libel per quod, not libel per se.

Plaintiffs' Complaint

4

states that YouTube's Terms of Service (and its Community

5

Guidelines, which are incorporated in the Terms of Service by

6

reference) "list as content violations such things as pornography,

7

sexually explicit content, child abuse, animal abuse, drug abuse,

8

under-age drinking and smoking, and bomb making," and the Terms of

9

Service directly references "pornography and obscenity, among other

United States District Court

For the Northern District of California

10

things, as prohibited Content."

11

YouTube's notice "was defamatory because it gave the impression to

12

the reasonable average viewer that Plaintiffs' Content in the video

13

had been pornographic or otherwise beyond the bounds of

14

decency . . ." when is neither pornographic nor indecent.

15

70.

16

notice could give that impression is if the average viewer knew

17

that pornography and obscenity, among other things, were prohibited

18

by YouTube's Terms of Service.

19

itself makes reference to any particular type of content at all.

20

Thus, YouTube's notice is not libel per se.

21

Coors Co., 157 F.3d 686, 695 (9th Cir. 1998).

22

YouTube's service may be a ubiquitous part of contemporary culture,

23

its Terms of Service and their prohibitions are not "matters of

24

common knowledge rationally attributable to all reasonable

25

persons . . . ."

26

FAC ¶ 35.

Plaintiffs allege that

Id. at ¶

However, the only way the reference to "content" in YouTube's

After all, nothing in the notice

See Newcombe v. Adolf
Furthermore, while

Palm Springs, 73 Cal. App. 4th at 5.

As a result, Plaintiffs' motion for partial summary judgment

27

is DENIED.

Because the Court finds that YouTube is able to present

28

all the facts "essential to justify its opposition . . ." to

21

1

Plaintiffs' motion, YouTube's request for discovery prior to

2

addressing this motion under Federal Rule of Civil Procedure 56(d)

3

is DENIED.

4
5
6

V.

CONCLUSION
For the reasons set forth above, Defendants' motion to dismiss

7

is GRANTED and leave to amend is GRANTED in part.

Plaintiffs'

8

motion for partial summary judgment is DENIED.

9

file any Second Amended Complaint within thirty (30) days of the

Plaintiffs shall

United States District Court

For the Northern District of California

10

signature date of this order.

Failure to file an amended complaint

11

within the time allotted may result in dismissal with prejudice.

12
13
14

Dated: June 10, 2015
UNITED STATES DISTRICT JUDGE

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