Mishiyev v. Alphabet, Inc.

444 F.Supp.3d 1154

Erik MISHIYEV, Plaintiff,

v.ALPHABET, INC.; XXVI Holdings, Inc.; Google, LLC; YouTube, LLC; YouTube Entertainment Studios, Inc.; and Does 1 through 10, inclusive, Defendants.

No. C 19-05422 WHA

United States District Court, N.D. California.

Signed March 13, 2020

Amiel Lee Wade, Wade & Silverstein, Brandon Joseph Chaidez, Wade Law Group, San Jose, CA, Harold Winfred Dickens, III, Law Offices of Harold W. Dickens, III, Los Angeles, CA, for Plaintiff.

David H. Kramer, Ryan Scott Wolf, Dale Richard Bish, Wilson Sonsini Goodrich & Rosati a Professional Corporation, Palo Alto, CA, for Defendants.

ORDER DISMISSING ACTION

WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE

INTRODUCTION

In this action arising out of defendants' allegedly wrongful removal of plaintiff's videos from defendants' video-sharing website, defendants move to dismiss. Because the parties' agreement expressly authorized the allegedly wrongful conduct, as well as for other reasons stated below, the motion is GRANTED .

STATEMENT

Defendant YouTube, LLC, operated a popular video-sharing website of the same name through which users could post and view video content. YouTube allowed users to upload or view videos for free, in exchange for a nonexclusive license to host users' videos. Certain users could make money from their videos through YouTube's AdSense program: YouTube would display advertising in connection with a video and share advertising revenue with the user who uploaded it. As viewers, users could subscribe to another user's channel to keep up to date with new videos (First Amd. Compl. ("Compl.") ¶¶ 9–12).

Starting in 2007, Plaintiff Erik Mishiyev operated two such channels, uploading videos of "original music, DJ mixes, and celebrity interviews." Users viewed plaintiff's videos over 110 million times and over 250,000 users subscribed to his two channels. Through participation in the AdSense program, plaintiff purportedly earned over $300,000 between 2012 and 2018, his primary source of income. In 2019, however, YouTube terminated plaintiff's account and removed all of his videos. YouTube explained that it terminated plaintiff's account due to repeated copyright violations. The complaint, however, alleges that YouTube "did not simply remove [plaintiff's] content because of copyright claims, but instead in retaliation for placing [YouTube] on notice that [plaintiff] was filing a lawsuit against them." Notably missing from the complaint are any allegations that plaintiff's videos did not infringe others' copyrights (Compl. ¶ 11, 31).

At bottom, this action is about YouTube's decision to terminate plaintiff's account and disable the channels associated with it. YouTube's "Terms of Service" agreement governed the terminated relationship. The agreement vested YouTube with significant control over the operation of its service, including the ability to remove uploaded content (Compl. Exh. B).

Section 6.G, in part, disallowed infringing material and gave YouTube the power to remove content that infringed upon another's intellectual property rights:

YouTube does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and YouTube will remove all Content if properly notified that such Content infringes on another's intellectual property rights. YouTube reserves the right to remove Content without prior notice.

Section 7 of the agreement provided YouTube's account termination policy:

A. YouTube will terminate a user's access to the Service if, under appropriate circumstances, the user is determined to be a repeat infringer.

B. YouTube reserves the right to decide whether Content violates these Terms of Service for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length. YouTube may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user's account for submitting such material in violation of these Terms of Service.

Section 8 provided a procedure for copyright owners to notify YouTube if the owner believed a user's video infringed upon the owner's copyrights. If the copyright owner dutifully complied with the notification requirements, YouTube would remove the allegedly infringing content pursuant to Section 6.G. Section 8 also allowed users to rebut the notice by submitting a "counter-notice." Section 8.B provided (emphasis added):

If a counter-notice is received by the Copyright Agent, YouTube may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube's sole discretion.

Beginning in March 2016, plaintiff began receiving copyright claims on his most profitable videos. If plaintiff failed to respond, these claims would leave strikes on plaintiff's channels. Tally three strikes and YouTube would terminate plaintiff's channel. For the time being, plaintiff succeeded in rebutting the claims and restoring his videos (Compl. ¶ 15).

By 2017, over 100,000 people allegedly subscribed to plaintiff's channels. With access to plaintiff's channels and videos restored, that number continued to increase. Nevertheless, the views on each video plaintiff posted remained low when compared to similar channels with fewer subscribers (Compl. ¶¶ 17, 18).

At this point, plaintiff became suspicious of YouTube for failing to distribute his videos to his subscribers. To confirm whether YouTube distributed his videos, plaintiff demanded that YouTube customer service provide plaintiff with a list of subscribers that clicked on or watched his videos. The support team explained they could not provide such information (Compl. ¶ 18, Exh. E).

Eventually, according to the complaint, plaintiff lost faith in YouTube's customer service representatives and threatened litigation several times. The complaint points to an appended exhibit containing one such conversation, apparently to support the allegation that plaintiff threatened litigation. During the conversation, plaintiff berated a support representative and explained that plaintiff would "expose" YouTube's "corruption." Plaintiff made no mention of a lawsuit (Compl. ¶¶ 18–21, Exh. G).

The complaint alleges that on December 14, 2018, YouTube sent plaintiff a notice that YouTube would be terminating his account and removing his videos due to plaintiff's "litigation threat." In connection with this allegation, the complaint appended a May 2019 email from YouTube, rather than the December email. According to the May 2019 email plaintiff decided to append, the December 14 email "outlined the actions [YouTube was] taking to address [plaintiff's] threats made to YouTube employees." Those actions included "termination of [plaintiff's] YouTube Content Licensing Agreement and all channel monetization, and revoking [plaintiff's] access to creator support channels and YouTube Spaces indefinitely" (Compl. Exh. H).

In the month following the December 14 notice, the complaint alleges that plaintiff "became bombarded with copyright claims like he never had been before[.]" On January 22, YouTube allegedly acted upon the copyright claims and blocked all public access to plaintiff's videos. Over the next month, plaintiff submitted several counter-notices. In an April email appended to the complaint, YouTube explained that certain videos remained ineligible for counter-notice because YouTube had already reviewed and rejected previous counter-notices associated with those videos (Compl. ¶¶ 23–28, Exh. N).

According to the complaint, when plaintiff inquired further, YouTube retracted its statement that the videos had been ineligible for counter-notice and agreed to process the pending counter-notices. In support, the complaint appends a screenshot of an email YouTube allegedly sent. This order pauses to note that although the complaint suggests YouTube retracted its statement as to the January 2019 counter-notices, the email appears to predate those counter-notices. The email is dated September 24, but no year is included. We can rule out September 2019, however, because plaintiff filed the original complaint with these allegations and exhibits in August 2019. Thus, YouTube sent the email no later than September 2018, months prior to submitting the January 2019 counter-notices (Compl. ¶¶ 28–29, Exh. O).

In any event, the May 2019 email explained that YouTube disabled plaintiff's channel because the channel received more than three copyright strikes and that the information plaintiff provided in response to the copyright claims failed to show that plaintiff had the necessary rights to post the content on YouTube. As such, the copyright strikes were "not eligible" to be resolved. Based on that determination, YouTube explained that any new counter-notices plaintiff submitted would be rejected automatically (Compl. Exh. H).

As discussed, the complaint alleges that YouTube actually removed the videos "in retaliation for placing [YouTube] on notice that [plaintiff was] filing a lawsuit against [YouTube.]" As a result of YouTube's decision to terminate his account, plaintiff lost "new subscribers, views, future hits, performance bookings, and lost advertising and sponsorship revenue" (Compl. ¶¶ 31–34).

Plaintiff filed this action in August 2019 in our San Jose division. Plaintiff alleged six claims, including: (1) breach of contract, (2) intentional interference with prospective business advantage, (3) interference with contractual relations, (4) negligence, (5) negligent interference with prospective economic relations, and (6) injunctive relief.

In October 2019, before an order reassigned the action to the undersigned, Judge Davila allowed plai...