Green v. Youtube, LLC

Isaac Green v. YouTube, LLC et al.¹

Civil No. 18-cv-203-PB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

March 13, 2019

REPORT AND RECOMMENDATION

Before the court for preliminary review is pro se plaintiff Isaac Green's First Amended Complaint (Doc. Nos. 59-1, 104)² ("FAC") and an addendum (Doc. No. 71) to the FAC. See Aug. 17, 2018 Order (referring FAC to magistrate judge for preliminary review). Also before the court for consideration and a report and recommendation ("R&R") are the plaintiff's motions seeking preliminary injunctive relief (Doc. Nos. 4, 9, 18).

Background

I. Procedural History³

After Green filed his initial complaint (Doc. No. 1), those defendants that had been served moved to dismiss the complaint. See Doc. Nos. 24, 25, 45, 48. In addition to filing objections (Doc. Nos. 53, 56) to the motions to dismiss, Green filed the FAC, which has been referred to the undersigned magistrate judge for a preliminary review. See Aug. 17, 2018 Order.

After plaintiff filed the (proposed) FAC, defendants again moved to dismiss, see Doc. Nos. 68, 78, 79, 103, asserting essentially the same arguments set forth in their motions to dismiss the original complaint and including arguments to dismiss new claims Green asserted in the FAC. Green filed an objection (Doc. No. 82) to Patreon's motion to dismiss (Doc. No. 68), and then did not file a response to the dispositive motions filed by Google, Twitter, YouTube, and Facebook (Doc. Nos. 78, 79). The June 18, 2018 procedural order (Doc. No. 90), issued before the end of the objection period for those defendants' motions, stated that the court would hold those motions (Doc. Nos. 68, 78, 79) in abeyance pending a ruling on certain other motions in the case and issuance of a briefing schedule, see June 18, 2018 Order (Doc. No. 90). GoFundMe then filed its own motion to dismiss (Doc. No. 103), asserting arguments similar tothose asserted by the other defendants. Green did not file a response to GoFundMe's motion to dismiss.

II. Factual Background

Green's FAC contains no clear narrative and is difficult to understand. Many, if not most, of Green's assertions are legal conclusions that are not supported by any specific facts.

Liberally construed, the FAC appears to allege the following facts and claims against defendants Google LLC ("Google"); Twitter, Inc. ("Twitter"); YouTube, LLC ("YouTube"); Facebook, Inc. ("Facebook"); Patreon, Inc. ("Patreon"); GoFundme, Inc. ("GoFundMe"); and Blogspot.com. Green's claims arise out of his assertions that his rights were violated in connection with his use of the defendants' websites and online platforms. Green alleges that he has created one or more accounts on YouTube, Google, Facebook, Twitter, Patreon, and/or GoFundMe. Using those accounts, Green posts content on the internet to be seen by those who subscribe to, patronize, or follow his accounts. The only claims Green makes that specifically describe the defendants' actions which Green alleges have caused him injury are:

• Defendant Twitter deleted one or more of Green's Tweets, and, on one occasion, deleted 500 or more of Green's followers;• Green has had three YouTube channels, and YouTube has closed one of the channels, put two "false strikes" on his second channel, and prevented Green from streaming live videos on his third channel;

• Google, as the owner of YouTube, is responsible for YouTube's actions taken against Green;

• Facebook prevented Green from posting YouTube videos to his Facebook account, deleted Green's account and Green's "virtual property" associated with that account⁴; and

• Green raised over $1000 in a fundraiser he began on the GoFundMe platform, and then GoFundMe closed Green's account and returned the pledged donations to the donors.

Green has not made specific allegations of injurious acts taken against him by Patreon or Blogspot.com.

Green generally asserts that, due to the number of people who view and subscribe to his accounts on the defendants' websites, he is entitled to certain advertising revenue earned by those websites, particularly YouTube. Green claims that the defendants have embezzled such revenue from him. Green further claims the defendants have engaged in various tactics tomisappropriate and deprive Green of money to which he is entitled, including tampering with his accounts and manipulating data concerning the number of people who subscribe to and view his posts, videos, and Tweets. Although Green concedes that he "does not actually know how much is paid [by YouTube/Google] per ad, per view and per option of advertising," FAC at 5, he states in the FAC that the defendants are embezzling 90% or 100% of the money he has earned on the defendants' internet platforms. Green also claims that the defendants, motivated by political bias, based on the views he expresses in his videos and other postings, have locked him out of his various accounts; closed his accounts; denied him the ability to post some or all content; deleted subscribers, comments, and view-counts relating to his accounts; placed false strikes on his accounts; stole or otherwise denied Green access to his "virtual property," and otherwise harassed him.

III. Claims

Generously construing the assertions in the FAC, the court finds that Green asserts the following claims in this action:

1. One or more of the defendants have violated the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1) ("FLSA"), by failing to pay Green minimum wage.

2. One or more of the defendants have embezzled money earned by Green on the defendants' internet platforms and engaged in other criminal activity with regard to Green's use of those platforms.

3. One or more of the defendants have violated Green's First Amendment right to free speech, and engaged in viewpoint discrimination, by: a) censoring the content he posts on the defendants' internet platforms; b) denying Green access to the defendants' internet platforms; and c) requiring that Green agree to "Terms of Service" which allow the defendants to curtail his free speech rights.

4. Facebook has violated Federal Communications Commission ("FCC") rules.

5. Facebook targeted Green because he was involved in efforts to expose and prevent sex trafficking, in violation of: (a) the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq. ("CFAA"); (b) the Stop Advertising Victims of Exploitation Act of 2015, 18 U.S.C. § 1591(a) ("SAVE Act"); and the combined Allow States and Victims to Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act ("FOSTA-SESTA").

6. Facebook sold Green's personal data to advertisers, in violation of his right to privacy in that information.

7. All of the defendants improperly forced Green to consent to "Terms of Service" which "violate the Constitution, Federal laws, and civil rights, as well as virtual property rights . . . [are] discriminatory, and allow for the theft and 'virtual closing' of sites . . . and [] virtual laws, that they make up" in order to utilize each of the defendants' internet platforms or services.

8. All of the defendants: spied on, targeted, and demeaned Green; placed false strikes on Green's accounts; closed or shut down Green's accounts; locked Green out of his accounts; tried to use United Kingdom law or "Sharia law" in the United States to avoid complying with federal law; denied Green the use of and access to his "virtual property"; stole Green's intellectual property and "virtual property"; placed warnings on Green's website; tried to prevent people from accessing Green's accounts on the defendants' platforms; prevented Green's accounts from being viewed on cell phones; engaged in "shadowbanning" and cyberbullying; manipulated data relating to Green's accounts on the defendants' platforms; failed to "monetize" Green's accounts, and violated "internet rules."

9. Defendants violated Donald Trump's December 2017 Executive Order.

Preliminary Review of FAC

I. Standard

The court construes the pleadings of pro se litigants liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court may dismiss a complaint, sua sponte, "[i]f it is crystal clear that the plaintiff cannot prevail and that amending the complaint would be futile," Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001), or if the plaintiff has had an opportunity to amend the complaint to cure its deficiencies. See John v. Whole Foods Mkt., No. 2:13-CV-00144-NT, 2013 WL 5571203, at *3, 2013 U.S. Dist. LEXIS 147471, at *6 (D. Me. Sep. 19, 2013) ("'Generally, a district court may not sua sponte dismiss a complaint where the filing fee has been paid unless the court gives the plaintiff the opportunity to amend the complaint.'" (quoting Apple v. Glenn, 183 F.3d 477, 478 (6th Cir. 1999)), R&R approved, No. 2:13-CV-00144-NT, 2013 WL 5571203, 2013 U.S. Dist. LEXIS 146008 (D. Me. Oct. 9, 2013) (approving R&R recommending sua sponte dismissal for failure to state a claim where plaintiff had been given two opportunities to present an amended complaint that states a claim). "[I]f a defendant files a motion to dismiss for failure to state a claim, the plaintiff, as a practical matter, has notice of themotion and an opportunity to amend the complaint." Gonzalez-Gonzalez, 257 F.3d at 36. To determine whether the complaint states a claim upon which relief might be granted, whether the court is ruling sua sponte or on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court sets aside any statements "that are merely conclusory," and construes "all factual allegations in the light most favorable to the [plaintiff] to determine if there exists a plausible claim upon which relief may be granted." Galvin v. U.S. Bank, N.A., 852 F.3d 146, 155 (1st Cir. 2017); see also Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013); Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

II. Claim by Claim Analysis⁵

A. FLSA - Claim 1

Plaintiff asserts that one or more of the defendants...