Ligeri v. Youtube, Inc. et al

Filing 23

Transcript of Motion Hearing held on December 30, 2008, before Judge Woodlock. Court Reporter: Brenda K. Hancock at 617/439-3241. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 2/2/2009. Redacted Transcript Deadline set for 2/12/2009. Release of Transcript Restriction set for 4/13/2009. (Scalfani, Deborah)

Ligeri v. Youtube, Inc. et al

Doc. 23

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BEFORE: vs. BENJAMIN LIGERI,

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Plaintiff,

YOUTUBE, INC., ET AL Defendants.

) ) ) ) ) Docket No: ) 1:08-cv-11394-DPW ) ) )

THE HONORABLE DOUGLAS P. WOODLOCK

MOTION HEARING

John Joseph Moakley United States Courthouse Courtroom No. 1 One Courthouse Way Boston, MA 02210 Tuesday, December 30, 2008 2:00 p.m.

Brenda K. Hancock, RMR, CRR Official Court Reporter John Joseph Moakley United States Courthouse One Courthouse Way Boston, MA 02210 [phone] Mechanical Steno - Transcript by Computer

Dockets.Justia.com

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APPEARANCES: For the Plaintiff:

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For the Defendants: WILSON, SONSINI, GOODRICH & ROSATI PC By: Michael A. Berta, Esq. One Market Street Spear Tower, Suite 3300 San Francisco, CA 94105 - and DONNELLY, CONROY & GELHAAR, LLP By James B. Conroy, Esq. One Beacon Street 33rd Floor Boston, MA 02108 BENJAMIN LIGERI, PRO SE 39 Wheaton Avenue Rehoboth, MA 02769

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 session.

(The following proceedings were held in open court before the Honorable Douglas P. Woodlock, United States District Court Judge, United States District Court, District of Massachusetts, at the John J. Moakley United States Courthouse, One Courthouse Way, Courtroom 1, Boston, Massachusetts, on Tuesday, December 30, 2008): THE DEPUTY CLERK: All rise.

(The Honorable Court entered the courtroom at 2:00 p.m.) THE DEPUTY CLERK: You may be seated. This Honorable Court is now in Calling the case of Civil Action

08-11394, Benjamin Ligeri vs. YouTube Inc. et al. THE COURT: MR. LIGERI: THE COURT: Well, Mr. Ligeri -Yes, your Honor. -- after reading the reply, do you have

any -- or do you make the contention that you didn't click on the "Agree"? MR. LIGERI: THE COURT: MR. LIGERI: THE COURT: didn't click it? MR. LIGERI: Well, there isn't one, and the code shows Right. You do make that contention? Yes, I do, your Honor. What's the basis for saying that you

that -- and I can hand out a segment of that exhibit, Exhibit A. THE COURT: All right.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 up --

MR. LIGERI: THE COURT: MR. LIGERI:

I clipped the relevant portion. All right. Do I hand it to you?

(Document handed to the Deputy Clerk by Mr. Ligeri) MR. LIGERI: As you can see, it says "input type =

checkbox," about the sixth line down. THE COURT: MR. LIGERI: Mm-hmm. That's for the weekly Tube newsletter, That means the value starts

and it says "CHECKED" in caps.

checked, and then you can uncheck it to unsubscribe. THE COURT: MR. LIGERI: Mm-hmm. If you go down further, you'll see "I

certify I'm over 13" and "I agree to the terms of use." There's no checkbox there, there's no requirement to sign that, there is no requirement to agree to that, to even notice it. THE COURT: MR. LIGERI: Mm-hmm. When you sign up for -- some people sign

THE COURT:

Okay.

Let me be sure I've got this

straight between the parties. So, what's the YouTube response to that? MR. BERTA: I'm sorry, your Honor. The YouTube

response to that is, the reason that we put in the prior pages is they are slightly different from the current page. current page is attached -The

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor.

THE COURT:

No.

But what Mr. Ligeri tells me is he

signed up for the weekly Tube email, I guess. MR. LIGERI: THE COURT: Yes. But he didn't sign up for anything else.

They're just a list of things here. MR. BERTA: So, what this page looks like is, you have

I agree -- "I certify I'm over 13 years old," "I agree to the terms of the use," and there is a link to the terms of use and the privacy policy, and there is a link to the privacy policy. THE COURT: MR. BERTA: Right. Below those two statements, then you take

the action to sign up for the account, and, so, by signing up -THE COURT: understand fully. How do you do that? I just want to

I've got Mr. Kavanaugh's reply declaration,

I've got the attachment, which, I guess is, well, both Exhibit A and Exhibit B to that. Now, where do I see that someone has taken some sort of affirmative act that acknowledges acceptance of the terms and the privacy policy? MR. BERTA: By clicking on the signup button, your

THE COURT:

Well, the signup button looks likes what?

What does it look like? MR. BERTA: It's to some extent -- and let me just

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explain very briefly, if I could. THE COURT: MR. BERTA: Sure. The reason that they are attached as code

and not as physical representations is because the declarant, who's a software engineer, couldn't say with 100 percent certainty exactly how the spacing would look like in the pages represented today. So, I understand that the code itself is a

little harder to handle than a representation, but he couldn't swear as to exactly what the representation looked like. However, what he says and what is generally -- which you can see by looking at the opening Kavanaugh declaration, is that exhibit -- if I could just explain it colloquially, if you look at Exhibit C to the opening Kavanaugh declaration -THE COURT: MR. LIGERI: MR. BERTA: THE COURT: MR. BERTA: THE COURT: MR. BERTA: THE COURT: Okay. Hold on. Let me just get it out.

It's the opening motions? Yes. Exhibit C, is it? Yes, your Honor. Okay. Yup.

So, that's the account creation page. The current account creation page, not the

one that was in use in 2006 and 2007; is that right? MR. BERTA: That's correct. I would just briefly note

that the plaintiff has created accounts beyond those ones in 2006 and 2007, but that's --

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THE COURT: MR. BERTA: THE COURT: MR. BERTA:

Those are the ones you're relying on. That's right. Mm-hmm. And, so, the difference between the

exhibits in the reply declaration and this is, at the bottom, roughly speaking, instead of the two checkboxes of "Let others on my" -- "Let others find my channel on YouTube, if they have my email address" and check "I agree to the terms of use and privacy policy" -THE COURT: MR. BERTA: Right. -- there's a line and a hyphen that says

"I'm over 13," a line and a hyphen that says "I agree to the terms of use, and then below then you choose to create your account based on what is said there. So, the action is the

clicking to create my account button, and, so -THE COURT: Now, how do I know that on the basis of

the materials that I have here from Mr. Kavanaugh? MR. BERTA: So, what Mr. Kavanaugh states, your Honor,

is, first of all, with the code itself, which you can -- in the document that was handed up by plaintiff, it says those two things. It says, dash, "I certify I'm over 13 years old,"

dash, "I agree to the" -- and that is a link to the terms of use and privacy policy -THE COURT: MR. BERTA: Right. -- same as it is in the current signup

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page, and then below that, the actions there were SubmitDiv and the input name, action signup. That's the signup button that

you push right below what you have certified to and what you have agreed to. And in the reply declaration of Mr. Kavanaugh, he states that -- essentially that, that the terms of use are linked to from the phrase "Terms of use" on the account creation page, and it requires you to, quote, and that's what is quoted, "Agree to the terms of use and privacy policy" in order to create the YouTube account. So, when you've created

your YouTube account, you've agreed to that statement that is in what plaintiff handed out, the "I agree to the terms of use and privacy policy." THE COURT: MR. BERTA: Mm-hmm. And, so, just so your Honor is aware, it's

not just there, as explained in the opening declaration, that the terms of use show up. As the plaintiff acknowledges, he

submitted over a thousand videos to YouTube, and each and every time you make a submission of a video to YouTube, it says that you agree that these apply. THE COURT: have in front of me. MR. BERTA: Well, but that's in -- that is in the -But I can only deal with the evidence I

that's in the complaint, and it's also in the Kavanaugh opening declaration, that every time you --

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THE COURT:

But, you see, the dispute that Mr. Ligeri

has raised has to do with precisely what these things said and what he was required to do, and, so, those generalized agreements at various points, if that's what they are, have to be evidence for me to make that determination on that basis. MR. BERTA: And I apologize, because I'm not -- the

evidence is before the Court in the opening Kavanaugh declaration, that every time you make -- you submit a video to YouTube, it has a link to these terms of use and it says I agree that the terms of the use -THE COURT: But you're not -- you know, you're not

asking me to make the determination on each one of the thousand-or-so uploadings, right? You're asking me to make the

determination on the basis of his two engagements with YouTube, basic underlying engagements with YouTube. MR. BERTA: Well, so, to this extent, I guess I would

disagree, your Honor, in that, even if -- first of all, under the case law, if he is on -- if he sees the "I agree to the terms of use," and he clicks on something below that, where he has taken an action in reliance on the terms of use, that is a click-wrap agreement, and the only reason I'm bringing up the separate submissions is, for example, there's a Federal -there's a Second Circuit Court of Appeals case that deals with that sort of issue, where it was a little bit in the reverse, where, rather than it being on this page and you clicking after

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you've read the "I agree" part, in that case someone clicked something, something happened, and then they got some terms, and in that case, the Court found maybe the first time you're off the hook for not having seen the terms until after you've clicked, but when you have done it repeatedly there, as they had, one or two times a day, or whatever it is, and here a thousand times by Mr. Ligeri, it is no longer a defense for you to claim "I didn't see" it the one time, when you saw it the thousand additional times and you were on notice that these are the terms of use that govern your submissions to YouTube, and that's the Register.com case. So, I'm only pointing out the

thousand submissions, because -THE COURT: Let's take the case. Let's assume that --

assume against what you contend the evidence is, that there are 775 uploadings without the agreement, then there is one agreement, then there's no more. But you're saying that that

then would mandate on the choice of forum that it go to California? MR. BERTA: Honor. THE COURT: Okay. What you're saying is that I am not -- I am not saying that, your

everything he does thereafter, from 2006 forward, to the degree that it's related to the website is governed by this initial term of use. MR. BERTA: That's right.

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THE COURT:

So that you don't have to get into which

of the thousand or so governs and whether it governs after an uploading or not. Right? Yes, your Honor. Although --

MR. BERTA: THE COURT:

I mean, you tell me this, and if you want

to make it so complex as to require extended discovery on this precise issue, you can. I'm not sure that that's what you want

to do, and it seems to me that you can rise and fall on the 2006, Exhibit A, can't you? MR. BERTA: Fair enough, your Honor. Again, I believe

that his actions in creating an account after saying "I agree to the terms of use" is necessary and is sufficient for us to have reached an agreement on the terms of use applicable. THE COURT: MR. BERTA: THE COURT: Mm-hmm. Yes, your Honor. Okay. There is, even

So, Mr. Ligeri, let's go back to this.

in the snippet that you've given me, which is shown at page 4 of 6 in document 16-12, 16 dash 12, in this case, there is a submission that indicates an agreement, isn't there? MR. LIGERI: was a submission? THE COURT: MR. LIGERI: Right. I don't know what page we're on, I'm sorry, your Honor. Did you say there

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THE COURT:

You saw "I certify I'm over 13 years old,"

you saw "I agree to," and then there is the signup, right? MR. LIGERI: Correct. Well, I'm not saying I saw that

or agreed to it, I'm just arguing about -THE COURT: MR. LIGERI: THE COURT: Did you sign up? -- about the code itself. Did you sign up? Yes.

And in order to sign up, Whether

you have to go down through each one of these issues.

you looked at it or not, you have to go down each one of these points, don't you? MR. LIGERI: You have to -- the required fields are Once you do that, you

"User Name," "Date of Birth," "Gender." can click "Signup." THE COURT: the screen? MR. LIGERI: THE COURT: MR. LIGERI: THE COURT: MR. LIGERI: THE COURT:

There's no other required fields. You mean, you don't see this; it's not on

It's on the screen. So -I'm assuming it is. Just a moment. I don't recall, your Honor. Sorry.

So, your defense is you didn't look at it;

it's on the screen, but you didn't look at it. MR. LIGERI: THE COURT: MR. LIGERI: To that, sure. Well -Can I clarify, your Honor?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 button -day.

THE COURT: MR. LIGERI:

Sure. I've signed up for up to 50 accounts in a

Sometimes the terms of use -- if you sign up to

google.com the terms of use are displayed before the signup button, and you can scroll down. Adobe makes you go all the There is a

way down and scan the terms before you can sign up.

lot of precautions that a big internet company can do if they want you to read them. A lot of them just throw them in there When he's talking about a submission

in a very slight of hand.

page, it's a grayed-out font that you can barely see that says I agree to them. THE COURT: But you can't go any farther if you don't

do it, though, right, if you don't sign up? MR. LIGERI: sign up for YouTube? THE COURT: MR. LIGERI: Mm-hmm. Well, you have to click the signup You can't go any further if you don't

THE COURT: MR. LIGERI:

Mm-hmm. -- but you don't have to agree. I've

never seen terms when I've submitted a video as you've said, your Honor. THE COURT: MR. LIGERI: THE COURT: Okay. Well, that's a different issue.

Right. That's why I raised the question of 2006,

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2007 -MR. LIGERI: THE COURT: Okay. -- Exhibits A and B. Frankly, I can't see

any way to say that you're not subject to the terms of use here. I've read through your submissions. They seem -- they

are out of focus in many ways, and, so -- but the sole issue is the question of dismissal or transfer. MR. LIGERI: So, your Honor, what the effect of that

would be is any time someone -- any web page writes anything on a page that says "I agree", by continuing -- by seeing that page in any way, you're automatically agreeing to whatever that link might provide? THE COURT: We don't even know what the link goes to. I don't know if you draw that conclusion;

I'm not sure it's a proper conclusion to draw. But, here I have someone who is skilled and experienced in the use of the internet, who tells me that he does 50 of these agreements a day, signups a day, and the defense is that you didn't read it. That strikes me as not

something that I'm going to support by saying that you're free from the agreement or you can pick and choose what parts of the agreement that you want to have yourself adhere to. And, so, we're back to the question of dismissal and transfer. The difference between dismissal and transfer, Dismissal's the ordinary mechanism for

frankly, is this.

dealing with it, that is, failure to adhere to a forum

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selection clause, as is clearly in the terms of use here. Transfer would mean that I'd send it out to the Northern District of California. dispute. I don't believe that there's a

I'm not sure that there is a -- is there a courthouse

in San Mateo County? MR. BERTA: There is not a courthouse located in San

Mateo County, your Honor. THE COURT: But you don't contend that that means that

this, necessarily, requires that the case go to the San Mateo Superior Court. MR. BERTA: THE COURT: That's correct, your Honor. It could go to the Northern District of

California, because San Mateo County is in the Northern District. MR. BERTA: THE COURT: That's right, your Honor. Okay. So, the choice is, you pay a fee to If it's

start the case again, if the case is dismissed. transferred, you don't pay the fee. MR. LIGERI: THE COURT: MR. LIGERI:

Is your ruling done, your Honor? Pretty much. I mean --

There were a lot of other objections I

had to the terms beside the mere fact -THE COURT: I've read your brief. The only thing that

had any substance to it, as far as I was concerned, was the question of whether or not you actually went through the terms

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in order to get to the signup. MR. LIGERI: your Honor? THE COURT: interactive. Well, no.

So --

Can I have 30 seconds for a surreply,

It's not -- this part isn't You took a I've

You get an opportunity to brief it.

little bit more than the customary 20 pages to do it.

read it, I've looked at it very carefully, I've listened to what you have to say, and at some point there's a certain finality. And, so, we've reached that point of finality, and

the sole question, as far as I'm concerned, is, do I transfer this or do I dismiss it outright, and I'm prepared to do either one in deference to your position as a pro se litigant. But I'm telling you what I think is the principal difference between the two. One is, I dismiss it, and if you

want to bring it again, you're going to have to -- you have to bring it in San Mateo County or in the Northern District of California, and you have to pay another fee. If it's

transferred, then it's out there, but that's where it's going to be. You don't pay the fee, because it's transferred. MR. LIGERI: Well, your Honor, either way, it ends the

case for me, so I have no choice but to appeal that ruling. THE COURT: Okay. Then, I'm going to dismiss it under

these circumstances, because I find that it's been filed in the wrong jurisdiction under the forum selection clause that the parties have agreed to.

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MR. LIGERI: selection clause is? clause. THE COURT: selection.

Your Honor, can I ask where the forum Because there isn't a forum selection

I guess I should say venue and forum

It's where the case has to be brought. I'm just saying they don't have an actual

MR. LIGERI:

forum selection clause in their terms of use, they have a general clause that mentions, alludes to the forum that you have to choose. I don't know if that's a clause. I'll tell you, that's a forum selection

THE COURT:

clause by any other name. MR. LIGERI: I don't feel, also, that a layman can

read those terms legally, your Honor. THE COURT: Okay. Well, you've said that in your

filings and I've read them, but the short of it is that I will allow the motion as a motion to dismiss here, because the case is brought in the wrong court. It is to be brought in the

court of competent jurisdiction in San Mateo County of California. It was not, and, for those reasons, may not

properly proceed here. So, the Clerk will, relatively promptly, issue judgment based on that, and the time for your appeal runs from the date of the judgment. MR. LIGERI: THE COURT: Thank you, your Honor. Okay? All right. We will be in recess.

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THE DEPUTY CLERK:

All rise.

(Proceedings adjourned at 2:20 p.m.)

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CERTIFICATE

I, Brenda K. Hancock, RMR, CRR and Official Reporter of the United States District Court, do hereby certify that the foregoing transcript, from Page 1 to Page 18, constitutes, to the best of my skill and ability, a true and accurate transcription of my stenotype notes taken in the matter of Ligeri v. YouTube, No. 1:08-cv-11394-DPW.

/s/ Brenda K. Hancock Brenda K. Hancock, RMR, CRR Official Court Reporter