Williby v. Hearst Corporation et al

Filing 71

ORDER Denying 66 Motion for TRO and Preliminary Injunction. Signed by Judge Edward J. Davila on 10/14/2016. (ejdlc3, COURT STAFF) (Filed on 10/14/2016) (Additional attachment(s) added on 10/14/2016: # 1 Certificate/Proof of Service) (amkS, COURT STAFF).

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 SAN JOSE DIVISION 9 10 HARRY J. WILLIBY, Case No. 5:15-cv-02538-EJD Plaintiff, 11 United States District Court Northern District of California v. 12 13 HEARST CORPORATION, et al., Defendants. ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Re: Dkt. No. 66 14 15 Plaintiff Harry Williby (“Plaintiff”) brings this action against The Hearst Corporation and 16 Ernesto Mourelo (collectively, “Defendants”) for defamation and intentional interference with 17 prospective economic relations. Compl., Dkt. No. 1. Presently before the court is Plaintiff’s 18 application for a temporary restraining order (“TRO”) seeking to enjoin “Defendants, including 19 their domestic and foreign agents, divisions, parents, subsidiaries, affiliates, YouTube 20 partnerships, or YouTube joint ventures…from applying, or enforcing, ‘Copyright Claims’ or 21 ‘Community Content Violation Claims’ against Plaintiff’s YouTube Channel(s): The Attorney 22 Depot and the Harry Williby Channel...”. Pl. Mot. for TRO (“Mot.”), Dkt. No. 66. 23 24 25 This matter is suitable for decision without oral argument. Civ. L. R. 7-1(b). Having reviewed the relevant pleadings, the court finds, concludes and orders as follows: 1. The standard for issuing a TRO is the same as that for the issuance of preliminary 26 injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 27 (1977). Thus, a TRO, like a preliminary injunction, is “an extraordinary remedy that may only be 28 1 Case No.: 5:15-cv-02538-EJD ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER 1 awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. NRDC, Inc., 2 555 U.S. 7, 22 (2008). 3 2. “The proper legal standard for preliminary injunctive relief requires a party to 4 demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm 5 in the absence of preliminary relief, that the balance of equities tips in his favor, and that an 6 injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 7 2009). Temporary injunctive relief may also issue if “serious questions going to the merits were 8 raised and the balance of the hardships tips sharply in the plaintiff’s favor,” thereby allowing 9 preservation of the status quo where complex legal questions require further inspection or 10 United States District Court Northern District of California 11 deliberation. Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1049 (9th Cir. 2010). 3. As an initial matter, an ex parte TRO application must satisfy Federal Rule of Civil 12 Procedure 65(b)(1), which demands notice to the opposing party or parties. Plaintiff avers that a 13 written copy of this Motion for a TRO was sent to Defendant Hearst Corp. by mail on October 7, 14 2016. Dkt. No. 70. The court construes this representation to mean Plaintiff is not requesting that 15 relief be issued without notice. Accordingly, the court will therefore proceed to an analysis of the 16 Winter factors to determine whether a TRO should issue here. 17 4. The second Winter factor - which is arguably the “single most important 18 prerequisite for the issuance of a preliminary injunction” (Freedom Holdings, Inc. v. Spitzer, 408 19 F.3d 112, 114 (2d Cir. 2005) - requires the moving plaintiff “to demonstrate that irreparable injury 20 is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis preserved). An 21 injunction ordered on any lesser showing is “inconsistent” with the “characterization of injunctive 22 relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff 23 is entitled to such relief.” Id. 24 5. In assessing whether Plaintiff has demonstrated that he is likely to suffer 25 irreparable harm in the absence of a TRO, the court is mindful that Plaintiff must make a “clear 26 showing of irreparable harm.” Garcia v. Google, 786 F.3d 733, 746 (9th Cir. 2015). “Speculative 27 injury does not constitute irreparable injury sufficient to warrant granting a preliminary 28 2 Case No.: 5:15-cv-02538-EJD ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER 1 injunction.” Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). Indeed, 2 “[a] plaintiff must do more than merely allege imminent harm sufficient to establish standing; a 3 plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive 4 relief.” Id. “Subjective apprehensions and unsupported predictions of revenue loss are not 5 sufficient to satisfy a plaintiff’s burden of demonstrating an immediate threat of irreparable harm.” 6 Id. at 675-76. 6. 7 Moreover, “[i]t is well established . . . that [] monetary injury is not normally considered irreparable.” L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 9 1202 (9th Cir. 1980). That is, because “purely monetary injury is compensable,” it is therefore 10 “not irreparable.” Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 851 (9th Cir. 11 United States District Court Northern District of California 8 1985). Accordingly, “[t]he possibility that adequate compensatory or other corrective relief will 12 be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of 13 irreparable harm.” Id. at 850 (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). 7. 14 Here, Plaintiff contends that in response to multiple copyright infringement and 15 “community content violation” claims made against him and/or his YouTube channels, YouTube 16 removed certain videos and restricted or terminated his accounts. Mot. at 6-9; Exhs. 1-2, 4-6. 17 Specifically, Plaintiff alleges that on July 4, 2016 YouTube removed a video entitled “Aileen 18 Wournos: Life and Death of a Serial Killer” from his account, and imposed a six-month 19 “copyright strike” against The Attorney Depot channel. The copyright strike is set to expire on 20 January 6, 2017, “as long as no additional copyright infringement notifications are received during 21 that time.” Id. at 8-9; Exhs. 5-6. On September 25, 2016, Plaintiff uploaded a video entitled “Raw 22 Graphic: S.A. Police Officer Rapes Black Teen Girl In Jail!!!” to the Harry Williby YouTube 23 Channel.1 YouTube immediately “flagged” the video, and on September 27, 2016, notified 24 Plaintiff that upon review it had determined that the video violated its Community Guidelines and 25 was removed. Id. at 7; Exh. 2. Plaintiff claims that YouTube then imposed a “Community 26 27 28 1 Plaintiff explains that the Harry Williby YouTube Channel is a “monetized channel,” in that the channel “generates and collect [sic] advertisement revenue.” Id. at 6. 3 Case No.: 5:15-cv-02538-EJD ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER 1 Guidelines strike and penalty” against his account and terminated the Harry Williby YouTube 2 Channel. Id. 3 Plaintiff seeks to show irreparable injury by contending that because YouTube removed 4 the video from The Attorney Depot and the terminated the Harry Williby YouTube Channel, 5 absent injunctive relief Plaintiff will lose “tens of thousands of views and potential advertisement 6 revenue.” See Id. at 8-9. This showing is insufficient to establish irreparable harm. The injury 7 alleged by Plaintiff is primarily monetary in nature, as well as highly speculative. In short, 8 “potential advertisement revenue” or the number of “views” being lost is insufficient to 9 demonstrate an immediate threat of irreparable harm, and would more appropriately be characterized as “[s]ubjective apprehensions” or “unsupported predictions of revenue loss.” See 11 United States District Court Northern District of California 10 Baldrige, 844 F.2d. at 675-76. Lost advertising revenue may be compensable by a monetary 12 damages award if Plaintiff prevails on his claim for intentional interference with prospective 13 economic relations. See Sole Energy Co. v. Petrominerals Corp., 128 Cal. App. 4th 212, 243 14 (2005) (holding that “[t]he measure of damages for intentional interference with contractual 15 relations or prospective economic advantage is an amount that will reasonably compensate 16 plaintiff for all loss or harm…caused by the defendant’s conduct,” including the plaintiff’s 17 financial loss of the benefits a prospective economic relationship). Accordingly, the harm alleged 18 by Plaintiff is not irreparable. 19 8. Additionally, with respect to the copyright strike against The Attorney Depot, the 20 court notes that Plaintiff’s delay in filing his application for a TRO also weighs against finding 21 irreparable harm. When a plaintiff delays seeking injunctive relief, the delay may be used as 22 evidence that there is really no immediate or irreparable harm. See Oakland Tribune, Inc. v. 23 Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1984) (affirming denial of a preliminary 24 injunction based in part on the plaintiff’s delay before seeking relief, concluding that such delay 25 “implies lack of urgency and irreparable harm.”); Hanginout, Inc. v. Google, Inc., 54 F. Supp. 3d 26 1109, 1132 (S.D. Cal. 2014) (denying injunctive relief, citing cases where delays of seven, five, 27 and three months were “sufficient to weigh against a finding of irreparable harm.”). Here, the 28 4 Case No.: 5:15-cv-02538-EJD ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER 1 copyright strike was imposed against Plaintiff on July 7, 2016, and is set to expire on January 6, 2 2017. Mot. at 8-9; Mot at Exh. 6. Thus, at the time Plaintiff filed the instant motion, three months 3 of the six month strike had already passed. 4 9. Based on the foregoing, the court concludes that Plaintiff has not made a clear 5 showing of irreparable injury, and on that basis is not entitled to the extraordinary remedy he 6 seeks. Accordingly, the application for a TRO and preliminary injunction (Dkt. No. 66) is 7 DENIED. 8 9 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: October 14, 2016 ______________________________________ EDWARD J. DAVILA United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No.: 5:15-cv-02538-EJD ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER

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