Song Fi Inc. v. Google, Inc.
108 F. Supp. 3d 876
N.D. Cal.2015Background
- Plaintiffs (Song fi, Inc.; Rasta Rock Opera; a minor N.G.B. and his parents) uploaded a music video "Luv ya Luv ya Luv ya" to YouTube; YouTube removed the public posting and placed a notice: "This video has been removed because its content violated YouTube’s Terms of Service," then reposted the video privately without views/likes/comments.
- YouTube contends the view count for the video was artificially inflated in violation of its Terms of Service; Plaintiffs deny involvement in any inflation and claim reputational and economic harm (lost sponsorship/performance, suspended funding, personal injury).
- Plaintiffs sued asserting libel, breach of express and implied contract, tortious interference, and violation of the D.C. Consumer Protection Procedures Act (CPPA).
- YouTube moved to dismiss: asserted Section 230(c)(2) immunity and contract authorization to remove/relocate content; Plaintiffs moved for partial summary judgment, seeking a finding that YouTube’s notice is libel per se.
- Court transferred venue to California based on YouTube’s Terms of Service choice; court evaluated CDA immunity, contract terms, libel (per se vs. per quod), tortious interference, and CPPA choice-of-law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CDA §230(c)(2) immunity for removing content | YouTube’s removal is not protected because the action implicated contractual and tort claims unrelated to "objectionable" offensive content | YouTube says §230(c)(2) immunizes its voluntary actions to restrict material it considers "otherwise objectionable" (subjective) | Court: §230(c)(2) does not cover removal based on allegedly inflated view counts; "otherwise objectionable" read in context does not extend to this conduct — no immunity on those claims |
| Breach of express contract and implied covenant | YouTube violated Terms by removing/relocating video and stripping views/likes/comments | Terms of Service expressly authorize YouTube to remove content and discontinue aspects of service at its sole discretion | Court: Terms unambiguously permit removal/relocation; breach and implied covenant claims dismissed with prejudice |
| Libel (per se) based on posted notice | Notice implies pornographic/indecent content; thus libelous on its face | Notice is true or at least not defamatory on its face; any defamatory meaning requires extrinsic facts (libel per quod) | Court: Notice is not libel per se; any claim is libel per quod requiring special damages; plaintiffs failed to plead special damages — libel dismissed with leave to amend |
| Tortious interference with prospective economic relations | Removal and the notice caused cancellation of Nike event and loss of funding | YouTube lacked knowledge of specific prospective deals and did not act with intent to disrupt; also conduct was not wrongful apart from interference | Court: Plaintiffs sufficiently alleged knowledge and disruption but failed to plead wrongful conduct independent of interference (since libel claim failed); tortious interference dismissed with leave to amend |
| CPPA (D.C.) claim | YouTube’s notice violated consumer protection law | Terms of Service select California law; plaintiffs did not oppose dismissal | Court: CPPA claim dismissed; plaintiff may plead a California consumer-protection claim instead |
Key Cases Cited
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir.) (describing §230 "robust" immunity)
- Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir.) (resolve doubts in favor of §230 immunity)
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir.) (Congress adopted §230 to encourage self-regulation by intermediaries)
- Batzel v. Smith, 333 F.3d 1018 (9th Cir.) (discussing §230 purpose to remove disincentives to moderate content)
- Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134 (Cal.) (elements of tortious interference)
- Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376 (Cal.) (interference must be wrongful apart from the interference itself)
- Melaleuca, Inc. v. Clark, 66 Cal.App.4th 1344 (Cal. Ct. App.) (truth is a defense to libel)
- Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir.) (distinguishing libel per se and libel per quod)
- Palm Springs Tennis Club v. Rangel, 73 Cal.App.4th 1 (Cal. Ct. App.) (definition of libel per se vs. per quod)