United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For SONG FI, INC., a District of Columbia Corporation, Plaintiff: Ronald F. Wick, LEAD ATTORNEY, COZEN O'CONNOR, Washington, DC.
For JOSEPH N. BROTHERTON, LISA M. PELLEGRINO, N.G.B., a minor, RASTA ROCK, INC., Plaintiffs: Ronald F. Wick, COZEN O'CONNOR, Washington, DC.
For GOOGLE, INC., a California corporation, YOUTUBE, LLC, a California Limited Liability Company, Defendants: Elizabeth Catherine Peterson, LEAD ATTORNEY, WILSON SONSINI GOODRICH & ROSATI, Palo Alto, CA; Michael H. Rubin, PRO HAC VICE, WILSON SONSINI GOODRICH & ROSATI, San Francisco, CA.
ROSEMARY M. COLLYER, United States District Judge.
Plaintiffs Song fi, Inc., Rasta Rock, Inc., Joseph N. Brotherton, and N.G.B., a six-year-old minor and son of Plaintiff Brotherton, have filed suit against Defendant YouTube, LLC, and its parent company, Google Inc., alleging that they improperly removed Plaintiffs' video from the YouTube website. Plaintiffs have also filed for a preliminary injunction to compel the reinstatement of their video on YouTube. Defendants argue that the case should be litigated in Santa Clara County, California, pursuant to the forum selection clause expressly set forth in YouTube's Terms of Service. Defendants have also moved to dismiss the Amended Complaint. The Court will transfer this case to the U.S. District Court for the Northern District of California, where Santa Clara County is located. Both Plaintiffs' motion for a preliminary injunction and Defendants' motion to dismiss will be denied without prejudice.
The Terms of Service contain the following provisions:
. . .
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over YouTube, either specific or general, in jurisdictions other than California. These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute
between you and YouTube that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California. These Terms of Service, together with the Privacy Notice at http://www.youtube.com/t/privacy and any other legal notices published by YouTube on the Service, shall constitute the entire agreement between you and YouTube concerning the Service. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and YouTube's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. YouTube reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND YOUTUBE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
YouTube Terms of Service (TOS) ¶ ¶ 1.A, 14, dated June 9, 2010, available at https://www.youtube.com/static?template=terms (last visited Oct. 28, 2014); see also Dkt. 8-4.
Plaintiff Song fi is a corporation with its principal place of business located in Washington D.C. that owns and distributes works of music and videos by independent musicians and filmmakers. On February 14, 2014, Song fi uploaded a video called " LuvYa LuvYa LuvYa" (hereinafter, LuvYa) onto YouTube's website. The video featured the musical group Rasta Rock Opera, as well as the performer Joseph Brotherton and his six-year-old son, N.G.B. Am. Compl. ¶ ¶ 3, 4, 31. On April 18, 2014, YouTube removed the video from its website and replaced it with a message reading: " This Video Has Been Removed Because its Content Violated YouTube's Terms of Service." Id. ¶ 34.
Song fi protested the removal and was then informed by YouTube that the video had been removed because of YouTube's belief that Song fi or its agents had attempted to manipulate the video's view count in violation of YouTube's terms of service. The " view count" is a feature on the YouTube website whereby, directly next to or below each item of uploaded content, there is a display of the number of times that the content has been viewed by the public. YouTube prohibits uploaders from using any kind of electronic devices (known as " robots" or " spiders" ) to artificially inflate the view count. These mechanisms are detected when a view count number increases at a rate exceeding that which could result from humans viewing the content on a web browser. Song fi disputed any ...