Section 230(c)(2) Gets No Luv From the Courts--Song Fi v. Google

Section 230(c)(2) Gets No Luv From the Courts–Song Fi v. Google

This is one of several pending cases where a video poster sues YouTube for allegedly wrongful takedown of the video. I find these cases fascinating because I always wonder how there’s enough money at issue to justify litigation. Unfortunately, I have received first-hand legal threats for my public remarks about this case, so welcome to my self-censored/sanitized coverage of the case.

songfi screenshotThe video at issue is called “Luv Ya,” which the court describes as “a music video by the Rasta Rock Opera featuring the dramatized tale of a five-year-old boy (played by Plaintiff N.G.B.) and five-year-old girl who dress up and go to a restaurant for lunch on Valentine’s Day. As the children eat their lunch, a guitarist and a trumpet player (played by Plaintiff Joseph Brotherton, N.G.B.’s father and the president of both Song fi and Rasta Rock Opera) serenade them.” The court links to the video in the opinion [] but that link goes to a page (screenshotted above) that, on the morning of June 12, 2015, says “Site opens May 1st, 2015.” The video allegedly garnered 23,000 views on YouTube.

YouTube removed the video and relocated it to a private URL because, YouTube claimed, “it determined the view count for ‘Luv ya’ was inflated through automated means, and thus violated its Terms of Service.” On the video page, YouTube told the public that “[t]his video has been removed because its content violated YouTube’s Terms of Service.” The plaintiffs sued for “(1) libel, (2) breach of express contract, (3) breach of implied contract, (4) tortious interference, and (5) violations of the D.C. Consumer Protection Procedures Act (“CPPA”), D.C. Code Section 28-3904.” YouTube won a venue transfer to California based on its user agreement. See our prior blog coverage of that ruling.

Section 230(c)(2) Fails

YouTube defended some of the claims on Section 230(c)(2), the lesser-luved sibling of Section 230(c)(1). 230(c)(1) says websites aren’t liable for third party content; Section 230(c)(2) says websites aren’t liable for their filtering decisions. Here, arguably, YouTube’s decision to remove “Luv Ya” is exactly the kind of filtering decision that Section 230(c)(2) was intended to protect.

However, Section 230(c)(2) only applies to “material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” YouTube didn’t appear to have any issues with the video itself; it had issues with the alleged view count inflation. YouTube nevertheless argued that the view count issue made the content “otherwise objectionable.” The court does not agree:

Congress did not intended [sic] “otherwise objectionable” to refer to (as YouTube believes) anything which it finds undesirable for any reason….Congress did not intend to immunize YouTube from liability for removing materials from its website simply because those materials pose a “problem” for YouTube…. the text, context, history, and purposes of the Communications Decency Act do not support reading “otherwise objectionable” to encompass the allegedly inflated view count associated with “Luv ya.”

Thus, the court concludes that it “does not believe the removal and relocation of ‘Luv ya’ was the kind of self-regulatory editing and screening that Congress intended to immunize in adopting Section 230(c). ”

I disagree with this court about Congress’ intent and the statutory analysis, but this ruling highlights how and why Section 230(c)(2) has become a relatively unhelpful immunity. Between the ambiguity of what filtering decisions the law applies to, and the requirement that filtering discretion be exercised “in good faith,” there is enough statutory murkiness to deter defendants from relying on it at all. For more on the strengths and failings of Section 230(c)(2), see this article.

YouTube Wins Anyway

Despite the court’s dispiriting segue on Section 230(c)(2), the court nevertheless dismisses the case. Although the court denigrates YouTube’s user agreement as “inartfully drafted,” the contract says YouTube can remove content in its sole discretion and can discontinue any aspect of its service. Between those two provisions, the court says YouTube has the authority to remove the video based on its concerns about the view counts. This permanently disposes of the contract-based claims.

The libel claim fails because the plaintiffs didn’t allege special damages. The tortious interference claim fails because there weren’t sufficient allegations of YouTube’s wrongful conduct. The consumer protection claim fails because the plaintiffs didn’t adequately contest it. The plaintiffs can amend their complaint to try again with those claims. I imagine the plaintiffs will do just that, although I’m skeptical they will find greater success on the next go-around.

I have more to say about this case but no appetite or capacity for further personal legal shenanigans, so here’s where my self-censorship becomes most pronounced.

Case citation: Song Fi, Inc. v. Google, Inc., 2015 WL 3624335 (N.D. Cal. June 10, 2015).