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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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HARRY J. WILLIBY,

Case No. 5:15-cv-02538-EJD

Plaintiff,
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United States District Court
Northern District of California

v.
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HEARST CORPORATION, et al.,
Defendants.

ORDER DENYING PLAINTIFF’S
MOTION FOR A TEMPORARY
RESTRAINING ORDER AND
PRELIMINARY INJUNCTION
Re: Dkt. No. 66

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Plaintiff Harry Williby (“Plaintiff”) brings this action against The Hearst Corporation and

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Ernesto Mourelo (collectively, “Defendants”) for defamation and intentional interference with

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prospective economic relations. Compl., Dkt. No. 1. Presently before the court is Plaintiff’s

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application for a temporary restraining order (“TRO”) seeking to enjoin “Defendants, including

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their domestic and foreign agents, divisions, parents, subsidiaries, affiliates, YouTube

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partnerships, or YouTube joint ventures…from applying, or enforcing, ‘Copyright Claims’ or

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‘Community Content Violation Claims’ against Plaintiff’s YouTube Channel(s): The Attorney

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Depot and the Harry Williby Channel...”. Pl. Mot. for TRO (“Mot.”), Dkt. No. 66.

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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:
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The standard for issuing a TRO is the same as that for the issuance of preliminary

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injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2

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(1977). Thus, a TRO, like a preliminary injunction, is “an extraordinary remedy that may only be

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Case No.: 5:15-cv-02538-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER

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awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. NRDC, Inc.,

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555 U.S. 7, 22 (2008).

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“The proper legal standard for preliminary injunctive relief requires a party to

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demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm

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in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

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2009). Temporary injunctive relief may also issue if “serious questions going to the merits were

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raised and the balance of the hardships tips sharply in the plaintiff’s favor,” thereby allowing

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preservation of the status quo where complex legal questions require further inspection or

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United States District Court
Northern District of California

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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

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Procedure 65(b)(1), which demands notice to the opposing party or parties. Plaintiff avers that a

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written copy of this Motion for a TRO was sent to Defendant Hearst Corp. by mail on October 7,

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2016. Dkt. No. 70. The court construes this representation to mean Plaintiff is not requesting that

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relief be issued without notice. Accordingly, the court will therefore proceed to an analysis of the

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Winter factors to determine whether a TRO should issue here.

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4.

The second Winter factor - which is arguably the “single most important

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prerequisite for the issuance of a preliminary injunction” (Freedom Holdings, Inc. v. Spitzer, 408

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F.3d 112, 114 (2d Cir. 2005) - requires the moving plaintiff “to demonstrate that irreparable injury

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is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis preserved). An

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injunction ordered on any lesser showing is “inconsistent” with the “characterization of injunctive

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relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff

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is entitled to such relief.” Id.

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5.

In assessing whether Plaintiff has demonstrated that he is likely to suffer

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irreparable harm in the absence of a TRO, the court is mindful that Plaintiff must make a “clear

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showing of irreparable harm.” Garcia v. Google, 786 F.3d 733, 746 (9th Cir. 2015). “Speculative

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injury does not constitute irreparable injury sufficient to warrant granting a preliminary

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Case No.: 5:15-cv-02538-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER

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injunction.” Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). Indeed,

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“[a] plaintiff must do more than merely allege imminent harm sufficient to establish standing; a

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plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive

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relief.” Id. “Subjective apprehensions and unsupported predictions of revenue loss are not

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sufficient to satisfy a plaintiff’s burden of demonstrating an immediate threat of irreparable harm.”

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Id. at 675-76.
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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,

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1202 (9th Cir. 1980). That is, because “purely monetary injury is compensable,” it is therefore

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“not irreparable.” Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 851 (9th Cir.

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United States District Court
Northern District of California

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1985). Accordingly, “[t]he possibility that adequate compensatory or other corrective relief will

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be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of

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irreparable harm.” Id. at 850 (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)).
7.

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Here, Plaintiff contends that in response to multiple copyright infringement and

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“community content violation” claims made against him and/or his YouTube channels, YouTube

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removed certain videos and restricted or terminated his accounts. Mot. at 6-9; Exhs. 1-2, 4-6.

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Specifically, Plaintiff alleges that on July 4, 2016 YouTube removed a video entitled “Aileen

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Wournos: Life and Death of a Serial Killer” from his account, and imposed a six-month

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“copyright strike” against The Attorney Depot channel. The copyright strike is set to expire on

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January 6, 2017, “as long as no additional copyright infringement notifications are received during

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that time.” Id. at 8-9; Exhs. 5-6. On September 25, 2016, Plaintiff uploaded a video entitled “Raw

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Graphic: S.A. Police Officer Rapes Black Teen Girl In Jail!!!” to the Harry Williby YouTube

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Channel.1 YouTube immediately “flagged” the video, and on September 27, 2016, notified

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Plaintiff that upon review it had determined that the video violated its Community Guidelines and

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was removed. Id. at 7; Exh. 2. Plaintiff claims that YouTube then imposed a “Community

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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.
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Case No.: 5:15-cv-02538-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER

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Guidelines strike and penalty” against his account and terminated the Harry Williby YouTube

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Channel. Id.

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Plaintiff seeks to show irreparable injury by contending that because YouTube removed

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the video from The Attorney Depot and the terminated the Harry Williby YouTube Channel,

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absent injunctive relief Plaintiff will lose “tens of thousands of views and potential advertisement

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revenue.” See Id. at 8-9. This showing is insufficient to establish irreparable harm. The injury

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alleged by Plaintiff is primarily monetary in nature, as well as highly speculative. In short,

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“potential advertisement revenue” or the number of “views” being lost is insufficient to

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demonstrate an immediate threat of irreparable harm, and would more appropriately be
characterized as “[s]ubjective apprehensions” or “unsupported predictions of revenue loss.” See

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United States District Court
Northern District of California

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Baldrige, 844 F.2d. at 675-76. Lost advertising revenue may be compensable by a monetary

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damages award if Plaintiff prevails on his claim for intentional interference with prospective

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economic relations. See Sole Energy Co. v. Petrominerals Corp., 128 Cal. App. 4th 212, 243

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(2005) (holding that “[t]he measure of damages for intentional interference with contractual

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relations or prospective economic advantage is an amount that will reasonably compensate

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plaintiff for all loss or harm…caused by the defendant’s conduct,” including the plaintiff’s

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financial loss of the benefits a prospective economic relationship). Accordingly, the harm alleged

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by Plaintiff is not irreparable.

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Additionally, with respect to the copyright strike against The Attorney Depot, the

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court notes that Plaintiff’s delay in filing his application for a TRO also weighs against finding

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irreparable harm. When a plaintiff delays seeking injunctive relief, the delay may be used as

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evidence that there is really no immediate or irreparable harm. See Oakland Tribune, Inc. v.

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Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1984) (affirming denial of a preliminary

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injunction based in part on the plaintiff’s delay before seeking relief, concluding that such delay

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“implies lack of urgency and irreparable harm.”); Hanginout, Inc. v. Google, Inc., 54 F. Supp. 3d

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1109, 1132 (S.D. Cal. 2014) (denying injunctive relief, citing cases where delays of seven, five,

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and three months were “sufficient to weigh against a finding of irreparable harm.”). Here, the

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Case No.: 5:15-cv-02538-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER

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copyright strike was imposed against Plaintiff on July 7, 2016, and is set to expire on January 6,

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2017. Mot. at 8-9; Mot at Exh. 6. Thus, at the time Plaintiff filed the instant motion, three months

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of the six month strike had already passed.

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Based on the foregoing, the court concludes that Plaintiff has not made a clear

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showing of irreparable injury, and on that basis is not entitled to the extraordinary remedy he

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seeks. Accordingly, the application for a TRO and preliminary injunction (Dkt. No. 66) is

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DENIED.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: October 14, 2016
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:15-cv-02538-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER