YouTube’s service terms just can’t be ignored

Federal judge tosses suit over music video that was pulled down, then re-posted, and had its view count reset

Performers who leap on to YouTube may be visually savvy, marketing smart, and outstanding early adopters of cutting-edge social media platforms. But besides promoting themselves zealously in cyber space with online services, they also need to step up and master an old legal fundamental: It pays to read the fine print before consenting to any agreement in ink and paper or electrons, as a federal judge in San Francisco has reminded an unhappy plaintiff.

To be sure, the overwhelming majority of YouTube users likely would fail a quiz on the service provider’s terms of service (TOS) agreement before assenting to it. But if the too blithely check off a box on an online page and move ahead with understanding their legal situation, they then also can’t gripe to courts and seek relief when YouTube removes, relocates, and resets the view count of their posted music videos. That was the beef in Darnaa, LLC v. Google Inc.

Plaintiff Darnaa was a limited liability company, an independent music label promoting and producing the works of artist Darnaa. The LLC in March, 2014, uploaded to YouTube the artist’s music video Cowgirl as part of an advertising campaign to promote sales of the song recordings in online digital music stores. But, yippee-ki-yay, YouTube made that ditty mosey where Darnaa didn’t expect on the great cyber free range. Why didn’t the judge corral YouTube, the online video giant?

Grounds for a relocation, reset

YouTube said it removed the video from its original location, re-posting it later under a new URL with its view count reset to zero. YouTube acted, it said, because it considered the music video in violation of section 4.H of the company TOS. It also said the Communications Decency Act protected it from legal issues possibly arising from its actions as am internet service provider.

The company asserted it reset the Cowgirl stats because it claimed that Darnaa had tapped automated tools, in violation of the TOS, to increase its view count. Darnaa sued in 2015, asserting YouTube’s actions were a: (1) breach of the implied covenant of good faith and fair dealing , (2) intentional interference with prospective economic advantage, (3) negligent interference with prospective economic advantage, and (4) defamation and or false representation in violation of the Lanham Act.

Although YouTube’s TOS Section 4.H prohibits automated tools to up view counts of videos posted on its site, Darnaa denied flouting that rule. But the court noted YouTube’s complaint about Darnaa’s practices was filed more than a year before the LLC sued. And, under another part of the YouTube TOS, Darnaa’s claims were time-barred, with the deadline for them to commence constrained to not more than a year after problems arose.

A complaint reprised with a twist

That led the court to find Darnaa’s complaint insufficient in its allegations of breach of good faith and fair dealing. The court had allowed Darnaa and the LLC to refile, if they could come up with a compelling justification for late filing. In 2017, Darnaa and her attorneys amended their complaint and re-filed it, asserting now only two of four original claims: (1) breach of the implied covenant of good faith and (2) intentional interference with prospective economic advantage. Darnaa LLC cited Section 1668 of the California Civil Code, which bars company contracts that seek to exempt a party from contractual responsibilities for their own fraud or willful injury. The company now also pointed to Section 10 of YouTube’s TOS, reading:

In no event shall YouTube … be liable to you for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever resulting from … (IV.) any interruption or cessation of transmission to or from our services … [or] V. any errors or omissions in any content or for any loss or damage of any kind incurred as a result of your use of any content … whether based on warranty, contract, tort, or any other legal theory. …

Darnaa LLC argued that all its claims constituted “intentional torts,” thus YouTube’s limitation-of-liability clause could not apply. The LLC asserted that if this were permitted, it would violate Section 1668 of the Civil Code. But the company couldn’t address how it wanted a federal court to also account for Section 230(c)(1) of the Communications Decency Act,  which YouTube said protected it from tort liability for actions as publishers of the Cowgirl video and surrounding content. YouTube noted that its legal opponent had failed to show it had acted fraudulently, willfully, or intentionally to harm Darnaa.

Read the TOS, please

The favorable ruling for YouTube matters because it plays an outsized role in creating and building audiences for the next generation of performing stars, helping them now and the future, too, in potentially making lots of money with videos that go viral on the service. The company’s metrics, those view counts, also can be huge. When YouTube removes or relocates a rising talent’s work, it can undercut promoters’ measurable investment of marketing muscle (promotional money). That can dash economic expectations for performers—in turn, crashing their career hopes and dreams.

So, no, as this blog has noted before, the TOS for ISPs isn’t so much blah, blah, blah. Consumers need to scrutinize the agreements with an eagle eye, even with legal help. Providers also can do themselves and their audiences a huge favor by making the agreements as clear, effective, and easy to deal with as possible.