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

Filing 237

ORDER DENYING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 5/15/18. (dtmS, COURT STAFF) (Filed on 5/15/2018)

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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., et al.,

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No. 14-cv-05080-CW

Plaintiffs,
ORDER DENYING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

v.
GOOGLE INC., et al.,

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Defendants.
(Dkt Nos. 211, 212, 221, 226)

United States District Court
Northern District of California

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Before the Court are the parties’ cross motions for summary
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judgment.

Plaintiffs Song Fi, Inc., Rasta Rock, Inc., Joseph N.

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Brotherton, and N.G.B. move for summary judgment on Defendants
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Google Inc. and Youtube, LLC’s first, second, third, fifth,
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sixth, seventh, and ninth affirmative defenses, as well as
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summary adjudication of the fact that Defendants have harmed
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others by using the same take-down notice, which is relevant to
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their claims for exemplary damages.

Docket No. 221.

Defendants

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move for summary judgment on both of Plaintiffs’ affirmative
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claims, libel and tortious interference.

Docket No. 212.

On

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December 19, 2017, the parties appeared for a hearing on both
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motions.

Having considered the papers and the arguments of

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counsel, the Court DENIES Plaintiffs’ motion and GRANTS
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Defendants’ motion.
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BACKGROUND
Rasta Rock produced “Luv ya,” a music video featuring a five

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year-old boy (N.G.B.) and five-year girl who dress up and go to a
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restaurant for lunch on Valentine’s Day.
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See Declaration of

Joseph Brotherton (Brotherton Decl.), Ex. 3.

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music group which includes Joseph Brotherton, performs a song in

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the background.

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Rasta Rock and publishes and distributes Rasta Rock Opera’s

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music.

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Depo. Trans.) at 48, 89.

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revolutionary music platform for the distribution of other

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artists’ music, but has never launched its product.

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United States District Court
Northern District of California

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On February 14, 2014, Song fi uploaded the “Luv ya” music video

See id.

Rasta Rock Opera, a

Song Fi has an ownership interest in

Declaration of Samuel Dippo (Dippo Decl.), Ex. 2 (Song Fi
Song Fi also aims to create a

Id. at 43.

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to YouTube, a service that allows users to upload videos that can

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be viewed by people around the world.

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of Katie Hushion Haas (Haas Decl.) ¶¶ 2, 4.

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agreed to the then-effective YouTube Terms of Service (TOS).

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Haas Decl. ¶ 2-3.

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Id. at 88-89; Declaration
In doing so, Song Fi

YouTube displays a view count for each video uploaded to the

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service, which indicates the number of times that YouTube

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believes people have requested to view the video.

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5.

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approximately 23,000 views.

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¶ 23.

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Haas Decl. ¶

In the two months that followed, “Luv ya” accumulated
Brotherton Decl. ¶ 2; Haas Decl.

On April 18, 2014, YouTube removed “Luv ya,” replacing the

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music video with a statement that read, “This video has been

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removed because its content violated YouTube’s Terms of Service

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. . . Sorry about that.”

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Declaration of Stephen Sieber, Ex. 2 (Notice).

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the video at a new URL, resetting the view count.

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16.

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original URL, and the page no longer referred to either Rasta

Docket No. 121 (Answer) ¶ 135;
YouTube reposted
Haas Decl. ¶

At this time, the video could no longer be seen at its

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Rock or Song Fi.

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linked to YouTube’s Community Guidelines, which provides

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information on the type of conduct that violates YouTube’s rules,

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including spam.

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Notice and the Community Guidelines are generic documents and

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were not specifically drafted to be used for the “Luv ya” video.

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Haas Decl. ¶ 19.

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of other instances in 2014 where it removed videos for view count

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United States District Court
Northern District of California

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fraud and other violations.

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Id. ¶ 18; see also Notice.

The Notice also

Dippo Decl., Ex. 25; Haas Decl. ¶ 18.

The

YouTube has posted the same Notice in thousands

Id.

YouTube’s algorithms had detected over 188,000 fraudulent

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viewing requests for the “Luv ya” video, which were automatically

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marked as spam and blocked from the view count.

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Mohith Rao Kotagiri (Kotagiri Decl.) ¶ 11.

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YouTube’s suspicions and prompted it to audit the “Luv ya”

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video’s view count.

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33 (Defendants’ Answer to Plaintiffs’ Interrogatory No. 4).

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audit revealed that the pattern of traffic was “highly

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anomalous,” with sharp spikes of views on some days and almost no

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views on others, as well as a large percentage of views coming

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from the same types of devices and running on an outdated version

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of the operating system.

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18; Defendants’ Answer to Plaintiffs’ Interrogatory No. 4; Dippo

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Decl., Ex. 4 (YouTube Depo. Trans.) 33-34, 79-80.

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Declaration of

This triggered

Id. ¶¶ 14-15, 18; see also Sieber Decl., Ex.
The

Haas Decl. ¶ 22; Kotagiri Decl. ¶¶ 15-

Shortly thereafter, on April 22, 2014, Rasta Rock Opera

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founder Stephen Sieber (also known as Stevie Marco) contacted

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YouTube to attempt to reinstate the video’s view count through

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YouTube’s appeal process.

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That same day, YouTube responded that the removal of “Luv ya” was

Haas Decl. ¶ 21; Dippo Decl., Ex. 26.

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justified due to a violation of Section 4H.

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that it had reinstated the video on a new URL, without previous

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views, likes, and comments.

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4H prohibits use of any automated system such as “robots,”

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“spiders,” or “offline readers” that access the service “in a

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manner that sends more request messages to the YouTube servers in

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

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same period by using a conventional on-line web browser.”

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United States District Court
Northern District of California

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Moreover, Section 4H also prohibits gaining views through other

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Id.

automated or deceptive means.

Id.

YouTube advised

It further advised that Section

Id.

Id.

On May 12, 2014, counsel for Plaintiffs wrote a letter to

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David Drummond, a member of Google’s Board of Directors and Chief

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Legal Officer.

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constituted “notice that YouTube’s arbitrary removal of, and

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continued refusal to reinstate, Mr. Marco’s video is interfering,

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without justification, with Song Fi and Mr. Marco’s prospective

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economic relationships.”

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video be reinstated or that YouTube provide firm evidence of a

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violation of YouTube’s TOS.

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Plaintiffs sent a letter to YouTube’s CEO Susan Wojcicki

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attaching a copy of the May 12, 2014 letter as well as a draft

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version of the complaint in this case.

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Dippo Decl., Ex. 27.

Id.

This letter stated that it

The letter requested that the

Id.

On July 22, 2014, counsel for

Dippo Decl., Exs. 28-29.

Three days later, on July 25, 2014, Song fi filed this

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lawsuit in the United States District Court for the District of

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Columbia.

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TRO and preliminary injunction and transferred the case to this

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district.

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dismiss, this Court dismissed Plaintiffs’ claims for breach of

Docket No. 1.

The court denied Song fi’s motion for a

Docket Nos. 12, 19-21.

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On a series of motions to

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contract, libel per se, violation of the Consumer Legal Remedies

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Act and the Cartwright Act, and fraud.

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Only Plaintiffs’ claims for libel per quod and tortious

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interference remain.

Docket Nos. 53, 97, 115.

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LEGAL STANDARD

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Summary judgment is properly granted when no genuine and
disputed issues of material fact remain, and when, viewing the

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evidence most favorably to the non-moving party, the movant is

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United States District Court
Northern District of California

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clearly entitled to prevail as a matter of law.

Fed. R. Civ. P.

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56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

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Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.

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1987).

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The moving party bears the burden of showing that there is

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no material factual dispute.

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true the opposing party’s evidence, if supported by affidavits or

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other evidentiary material.

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815 F.2d at 1289.

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in favor of the party against whom summary judgment is sought.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952

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F.2d 1551, 1558 (9th Cir. 1991).

Therefore, the court must regard as

Celotex, 477 U.S. at 324; Eisenberg,

The court must draw all reasonable inferences

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Material facts which would preclude entry of summary

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judgment are those which, under applicable substantive law, may

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affect the outcome of the case.

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identify which facts are material.

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Inc., 477 U.S. 242, 248 (1986).

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The substantive law will
Anderson v. Liberty Lobby,

Where the moving party does not bear the burden of proof on
an issue at trial, the moving party may discharge its burden of
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production by either of two methods:
The moving party may produce evidence negating an
essential element of the nonmoving party’s case, or,
after suitable discovery, the moving party may show
that the nonmoving party does not have enough evidence
of an essential element of its claim or defense to
carry its ultimate burden of persuasion at trial.
Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210

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F.3d 1099, 1106 (9th Cir. 2000).
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If the moving party discharges its burden by showing an
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absence of evidence to support an essential element of a claim or
United States District Court
Northern District of California

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defense, it is not required to produce evidence showing the
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absence of a material fact on such issues, or to support its
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motion with evidence negating the non-moving party’s claim.

Id.;

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see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990);
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Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).
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If the moving party shows an absence of evidence to support the
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non-moving party’s case, the burden then shifts to the non-moving
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party to produce “specific evidence, through affidavits or
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admissible discovery material, to show that the dispute exists.”
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Bhan, 929 F.2d at 1409.
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If the moving party discharges its burden by negating an
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essential element of the non-moving party’s claim or defense, it
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must produce affirmative evidence of such negation.

Nissan, 210

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F.3d at 1105.

If the moving party produces such evidence, the

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burden then shifts to the non-moving party to produce specific
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evidence to show that a dispute of material fact exists.

Id.

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If the moving party does not meet its initial burden of
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production by either method, the non-moving party is under no
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obligation to offer any evidence in support of its opposition.
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Id.

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ultimate burden of persuasion at trial.

This is true even though the non-moving party bears the

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Id. at 1107.

DISCUSSION
I.

Defendants’ Motion for Summary Judgment on Plaintiffs’
Affirmative Claims
A.

Libel Per Quod

“Libel is a false and unprivileged publication by writing
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. . . or other fixed representation to the eye, which exposes any
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person to hatred, contempt, ridicule, or obloquy, or which causes
United States District Court
Northern District of California

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him to be shunned or avoided, or which has a tendency to injure
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him in his occupation.”

Cal. Civ. Code § 45.

California

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recognizes two types of libel: libel per se, which is defamatory
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on its face, and libel per quod, which a reasonable reader would
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be able to recognize “only by virtue of his or her knowledge of
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specific facts and circumstances, extrinsic to the publication,
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which are not matters of common knowledge rationally attributable
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to all reasonable persons.”

Bartholomew v. YouTube, LLC., 17

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Cal. App. 5th 1217, 1226-27 (2017) (quoting Barnes-Hind, Inc. v.
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Superior Court, 181 Cal. App. 3d, 377, 386-87 (1986)).

Libel per

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quod requires the plaintiff to prove that he or she has suffered
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special damages as a proximate result of the published statement.
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Id. at 1227.
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Defendants argue that Bartholomew v. YouTube is controlling.
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The California Court of Appeal considered issues and facts that
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are very similar to the ones in this case.

Bartholomew, a

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Christian musician, posted a music video on YouTube, which
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YouTube removed because of the use of automated systems to
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generate views.

17 Cal. App. 5th at 1221-22.

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YouTube posted the

same Notice as that here, along with a link to what appears to be

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the same Community Guidelines.

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Guidelines listed a number of potential violations, including

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“Sex and Nudity,” “Hate Speech,” “Shocking and Disgusting,”

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“Children,” “Copyright,” “Privacy,” and “Harassment.”

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demurrer, the court held that the Notice was not defamatory.

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court first noted that the law dictated that “[i]f no reasonable

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reader would perceive in a false and unprivileged publication a

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Northern District of California

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meaning which tended to injure the subject’s reputation in any of

Id. at 1222.

The Community

Id.

On
The

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the enumerated respects, then there is no libel at all.”

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1226.

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working knowledge of the [sic] how internet hyperlinks work would

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have understood that the list on the Community Guideline Tips

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page is in fact general—that no one particular offense could be

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reasonably read to apply to Bartholomew’s video and that the

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categories applied to the many thousands of videos that YouTube

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might have had to remove for any number of reasons.”

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1229.

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items covered in YouTube’s terms of service, and even taking into

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consideration Bartholomew’s profession, we do not think that the

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removal statement can be deemed to subject her to ‘hatred,

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contempt, ridicule, or obloquy, or [cause her] to be shunned or

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avoided’ or tend to ‘injure [her] in [her] occupation.’”

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1233.

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defamatory statement of and concerning Bartholomew.

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Id. at

It then held that “an Internet user with a reasonable

Id. at

The court further held: “Given the sheer breadth of the

Id. at

Thus, the Notice could not be read to be making a
Id.

On matters of California law, this Court is “bound to follow

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the decisions of the California Court of Appeal unless there is

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convincing evidence that the California Supreme Court would hold
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otherwise.”

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889 (9th Cir. 2010).

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material facts as this case, including the same Notice and

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Community Guidelines posted by YouTube.

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Bartholomew court’s reasoning is persuasive.

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generic and does not identify any particular type of offense.

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refers to the Community Guidelines, which list a multitude of

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possible offenses that could have resulted in the removal of the

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United States District Court
Northern District of California

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video.

Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876,
Bartholomew involves essentially the same

Moreover, the
YouTube’s Notice is
It

Accordingly, it is unlikely that any reasonable reader

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would interpret the Notice and Community Guidelines in such a way

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as to expose Plaintiffs to “to hatred, contempt, ridicule, or

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obloquy,” or cause them to be “shunned or avoided,” or to be

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injured in their occupation.

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Cal. Civ. Code § 45.

Plaintiffs attempt to distinguish Bartholomew by arguing

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that their video was about children, making it more likely that

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viewers would conclude that the “Children” section prohibiting

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“inappropriate children’s content” of the Community Guidelines

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applied and that Plaintiffs had engaged in “some serious

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wrongdoing involving children.”

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uncontroverted evidence shows that YouTube removed the video and

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any reference to Plaintiffs from the original URL and posted the

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Notice in its place.

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Thus, visitors to the original URL would not see that the video

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was about children, and would be unlikely to conclude that the

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section about “Children” applied.

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reader would not jump to the conclusion that the video involved

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inappropriate children’s content.

Moreover, the Bartholomew

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court rejected a similar argument.

Bartholomew, a Christian

Pl. Opp. at 7.

But the

See Original Notice; Haas Decl. ¶ 18.

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Without more, a reasonable

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musician, alleged that the Notice and Community Guidelines as a

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whole “imputed to her a want of character.”

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App. 5th at 1222-24.

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that, “even taking into consideration Bartholomew’s profession,”

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the “sheer breadth of topics covered by the [Community

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Guidelines] simply cannot be reasonably read to apply to

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Bartholomew.”

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United States District Court
Northern District of California

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Bartholomew, 17 Cal.

The court rejected this argument, stating

Id. at 1232-33.

The same reasoning applies here.1

Defendants separately argue that Plaintiffs cannot prove
several of the required elements of their libel claim.

Several

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of these arguments provide alternative grounds for granting

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summary judgment on Plaintiffs’ libel claim.

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Defendants challenge that Plaintiffs have provided no

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evidence that any third party actually understood the statement

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as defamatory and about Plaintiffs.

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v. Rangel, 73 Cal. App. 4th 1, 5-7 (1999); Hecimovich v. Encinal

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Sch. Parent Teacher Org., 203 Cal. App. 4th 450 (2012).

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Plaintiffs point to the declarations of six individuals, provided

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for the first time with their opposition brief: Alexandre

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Abdoulaev, Jared Selikson, Yillah Natalie Rosenfeld, Derrick

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Sieber, Hieu Le, and Joseph Yu.

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declarants were not disclosed pursuant to Rule 26(a) and thus

See Palm Springs Tennis Club

Defendants argue that the six

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Plaintiffs make much of the fact that the Bartholomew court
distinguished an earlier decision in this case by noting that
“the plaintiff was able to allege that it was associated with a
specific wrongdoing, ‘inappropriate children’s content.’” Id. at
1232 n.9 (citing Song Fi, Inc. v. Google, Inc. 2016 WL 1298999,
*2-3 (N.D. Cal. Apr. 4, 2016)). But the Bartholomew court noted
in the same footnote that it disagreed with this Court’s
decision. See id. (“To the extent that the two federal cases
upon which Bartholomew relies come to a different conclusion, we
respectfully disagree.”).

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their declarations must be excluded pursuant to Federal Rule of

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Civil Procedure 37.

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witness under Rule 26 may not use that witness to supply evidence

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at a trial ‘unless the failure was substantially justified or is

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harmless.’”

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843, 861 (9th Cir. 2014) (quoting Fed. R. Civ. P. 37(c)).

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district court has “wide latitude” to exclude witnesses pursuant

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to Rule 37.

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United States District Court
Northern District of California

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F.3d 1101, 1106 (9th Cir. 2001).

“A party that does not timely identify a

Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d
A

Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259
Plaintiffs apparently did not

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include these witnesses in their disclosures.

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produce any evidence from them during discovery, which closed in

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February 2017.

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opportunity to depose or seek discovery from these witnesses.

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Because Plaintiffs failed to disclose the six declarants, and

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their nondisclosure was not substantially justified or harmless,

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these declarants will be excluded from consideration.

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Accordingly, Plaintiffs have not provided any evidence

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demonstrating that a third party actually understood the

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statement as defamatory and about them.

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Nor did they

As a result, Defendants did not have an adequate

Defendants further contend that Plaintiffs have no evidence

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of special damages.

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Joseph Brotherton, Derrick Sieber, and Stephen Sieber, which each

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state conclusorily that they lost financial opportunities because

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of YouTube’s removal of the video.

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¶ 4 (“I had been promised $2,000 by Stephen Sieber AKA ‘Stevie

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Marco’ in early April 2014 for participating in upcoming Rasta

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Rock Opera (RRO) local performances.

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YouTube’s removal of the ‘LuvYa’ video from its website and

Plaintiffs respond with the declarations of

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See, e.g., Brotherton Decl.

They never occurred due to

replacement of the video with a false Notice claiming that the

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content of the video video [sic] violated YouTube’s Terms of

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Service.”)

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establish that any loss was proximately caused by defamation by

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YouTube.

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deceived by YouTube’s false statement, believed Plaintiffs’ video

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showed inappropriate content, and as a result refused to fund

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Plaintiffs.

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Northern District of California

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damages with the requisite level of particularity.

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But these declarations fail to provide facts to

The declarations do not claim that investors were

Accordingly, Plaintiffs have not established special
Gomes v.

Fried, 136 Cal. App. 3d 924, 939-40 (1982).

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B.

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To establish tortious interference with prospective economic

Tortious Interference

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relationships, Plaintiffs must prove: “(1) an economic

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relationship between the plaintiff and some third party, with the

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probability of future economic benefit to the plaintiff; (2) the

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defendant’s knowledge of the relationship; (3) intentional acts

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on the part of the defendant designed to disrupt the

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relationship; (4) actual disruption of the relationship; and (5)

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economic harm to the plaintiff proximately caused by the acts of

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the defendant.”

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Cal. 4th 1134, 1153 (2003).

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Defendants’ “conduct was wrongful by some measure other than an

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interference with the plaintiff’s interest itself.”

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v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 379 (1995).

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Korea Supply Co. v. Lockheed Martin Corp., 29
Plaintiffs must also show that

Della Penna

Plaintiffs rely on their defamation claim to establish that

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Defendants’ actions were otherwise legally wrongful.

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115 (Order on MTD) at 13-14.

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claim fails, their tortious interference claim must also fail.

Docket No.

Because Plaintiffs’ defamation

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In addition, Plaintiffs cannot prove that Defendants knew of

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Plaintiffs’ alleged relationships and acted intentionally to harm

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those relationships.

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two potential economic relationships, with Nike and Precision

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Contracting Solutions (PCS).

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allege that their counsel’s July 22, 2014 letter attaching a

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draft complaint which mentioned Nike gave Defendants notice of

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Plaintiffs’ relationship with Nike.

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Northern District of California

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Nike was to hire Plaintiffs for a July 4, 2014 performance, which

Plaintiffs allege that Defendants disrupted

With respect to Nike, Plaintiffs

But Plaintiffs allege that

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had long passed by the time Defendants received the letter and

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learned of Plaintiffs’ alleged relationship with Nike.

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Defendants therefore could not have known of Plaintiffs’ alleged

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relationship and acted intentionally to harm that relationship.

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The July 22, 2014 letter did not specifically identify PCS.

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Thus, Plaintiffs cannot establish that Defendants had knowledge

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of Plaintiffs’ relationships and acted intentionally to harm

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those relationships.

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Cal. App. 3d 990, 997 (1977) (no interference claim where

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“disputed contracts had been abandoned and discontinued” months

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before defendant’s alleged wrongdoing).

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See, e.g., Dryden v. Tri-Valley Growers, 65

Additionally, Plaintiffs have not put forth any evidence

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that Defendants actually interfered with Plaintiffs’

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relationships.

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Plaintiffs and Nike, the Nike performance did not go forward

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because Nike never approved the performance in the first place

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and Nike and Plaintiffs had an unrelated dispute about trademark

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usage.

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declarations authenticating the correspondence and corroborating

According to email correspondence between

Dippo Decl., Ex. 33.

Nike officials submitted

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the statements made in that correspondence.

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Kauffman (Kauffman Decl.) ¶¶ 2-6; Declaration of Ryan Schafer

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(Schafer Decl.) ¶¶ 2-5.

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they never saw the YouTube video and that it did not factor in

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their decision.

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depositions that this company was owned and operated by Sieber’s

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son, Derrick Sieber, and that it continued to fund Plaintiffs

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until at least October 2014, which was long after this lawsuit

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United States District Court
Northern District of California

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was filed.

Id.

Declaration of Carol

Nike officials have also stated that

As for PCS, it appears from Plaintiffs’

Dippo Decl., Ex. 6 (Derrick Sieber Trans.) 25:2-4;

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Dippo Decl., Ex. 3 (Rasta Rock Trans.) 54-55.

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produced checks indicating funding through December 2014.

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Decl., Ex. 34; Song fi Trans. 185-86, 194-95.

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themselves have submitted a declaration indicating that their

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relationship with PCS continued through at December 5, 2016.

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Declaration of Stephen Sieber in Support of Opposition (Sieber

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Opp. Decl.) ¶ 11.

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Plaintiffs have
Dippo

Plaintiffs

See

For all these reasons, Plaintiffs cannot prevail on their

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tortious interference claim.

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II.

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Plaintiffs’ Motion for Partial Summary Judgment on Exemplary
Damages Issue and Defendants’ Affirmative Defenses
The Court need not reach Plaintiffs’ motion for summary

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judgment on the exemplary damages issue and Defendants’

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affirmative defenses because none of Plaintiffs’ affirmative

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claims survives.
CONCLUSION

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Plaintiffs’ motion for summary judgment (Docket No. 221) is

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DENIED and Defendants’ motion for summary judgment (Docket No.

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212) is GRANTED.

The Clerk shall enter judgment in favor of
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Defendants.

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Plaintiffs.

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Defendants shall recover their costs from

IT IS SO ORDERED.
Dated: May 15, 2018
CLAUDIA WILKEN
United States District Judge

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United States District Court
Northern District of California

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