YouTube Defeats Another Remove-and-Relocate Case–Darnaa v. Google

February 24, 2017 · by Eric Goldman · in Derivative Liability, Licensing/Contracts, Search Engines, Spam

YouTube has been sued a few times for removing a video based on its spam policies and then relocating it to a new URL because remove-and-relocate breaks in-bound links (and any associated marketing investments) and resets the view counter. This particular case is by the singer Darnaa over the removal-and-relocation of her video “Cowgirl” (I’ve previously linked to it; once is enough). The last time I blogged the case, Judge Whyte (in one of his last opinions before retirement) partially rejected Google’s Section 230(c)(2) defense. Still, the case got whittled down so that the only active claim was a breach of the implied covenant of good faith and fair dealing. That’s a difficult claim to win in any circumstance, especially when it’s the only cause of action. Predictably, the claim finally fails.

Google invokes the limitation of liability clause in its terms of service, which reads:

IN NO EVENT SHALL YOUTUBE … BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM … (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES … [OR] (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT … WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY….

Darnaa only sought damages for the implied covenant breach, and the court says the limitation of liability clause moots her damages claim. Darnaa argued that a California statute prevented the limitation of liability in fraud cases, but that didn’t help:

Darnaa, LLC’s claims simply stem from Google’s interruption of service and resetting the view count on the “Cowgirl” video, which it did pursuant to a term in the agreement (namely, the prohibition of systems that artificially inflate view counts). As pled, this simply states a claim for breach of the implied covenant of good faith and fair dealing, and Section 1668 does not protect such a claim from the limitation-of-liability clause found in Section 10 of the terms of service agreement. Darnaa’s claim, which seeks only damages, is precluded.

In a footnote, the court said that Darnaa was further boxed in by Section 230(c)(2):

To the extent Darnaa, LLC, would seek to recharacterize its contract claim as sounding in tort, the claim only survived the prior motion to dismiss, based on the Communications Decency Act, because Judge Whyte held it did not sound in tort. Darnaa, LLC, cannot rescue its claim with this shell game.

Onto the appeals court, I presume.

Overall, Google has to be pleased with this outcome. It’s a textbook example of how skillful litigators can box in a plaintiff through iterative motions to dismiss, each time narrowing the case until there’s nothing left. Still, it was frustratingly obvious from the first complaint that Darnaa would not win, so the fact that this case went through 3 complaints and nearly 3 years is still a loss in my book. If Section 230(c)(2) worked as a robust safe harbor, perhaps it might have helped dismiss the case earlier…or, better yet, kept the case from being filed at all.

I think this ruling nicely complements Google’s recent win in the e-ventures case, which upheld Google’s right to de-index what it considered to be a “pure spam” website. Regardless of what legal doctrine the court ultimately relies upon, plaintiffs who are suing Google for responding to what it thinks is spammy activity face very long odds in court.

Case citation: Darnaa, LLC v. Google Inc., 2017 WL 679404 (N.D. Cal. Feb. 21, 2017). The original complaint.

YouTube Defeats Another Remove-and-Relocate Case–Darnaa v. Google

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