Another YouTube Remove-and-Relocate Case Fails–Kinney v. YouTube

This is one of numerous cases relating to YouTube’s crackdowns on videos allegedly promoted by bots. YouTube removed the videos from the promoted URLs and relocated them to new URLs, thus stripping the initial videos of the benefits of the unwanted promotions while keeping the videos online. YouTube’s crackdown campaign spurred an unusual amount of litigation for a relatively routine anti-spam initiative, suggesting that maybe it could have been handled better. Years later, we’re still seeing cases percolate through the courts, a painful and costly legacy even if YouTube will eventually win them all.

The YouTube channel at issue in this case was called “actionadventures.” YouTube suspended the account in Nov. 2012 and lifted the suspension 2 years later. The channel operator sued in early 2015.

YouTube defended on its contract provision that restricts the time to file claims to within 1 year of their accrual. Here, if the claim accrued at YouTube’s Nov. 2012 suspension, the 2015 lawsuit was untimely.

The plaintiff argued that the synthetic SOL wasn’t in the contract when he created his account. A YouTube engineer submitted a declaration with the contract terms from 2009. (As I’ve said many times, you need to keep records of your historical contract terms sufficient to be able to introduce them credibly in court, even if everyone involved has left the company). The plaintiff  testified that he couldn’t remember if he read the contract when he signed up. With that admission, the plaintiff failed to create a triable issue about the contract terms at signup.

Relatedly, there was no question that the plaintiff agreed to YouTube’s contract:

YouTube offered admissible evidence that Kinney was required to click on the button agreeing to the Terms of Service in order to register his account. Kinney admitted in his opposition to the motion for summary judgment that he did, in fact, click on the “I agree” button

Second, the plaintiff argued the synthetic SOL is unconscionable. Although YouTube’s contract is a contract of adhesion, “there was no surprise regarding the contractual limitations period…the terms were included in all capital letters in a four-page document containing 14 different subjects.” The court also says it’s not substantively unconscionable: “The one-year limitations period is not outside the reasonable expectations of the parties, and is not an unreasonable or unexpected reallocation of risk. A one-year limitations period has been upheld in many types of cases.”

As a result, most of the lawsuit fails due to the synthetic SOL. If your online contract doesn’t contain such a provision, this ruling gives you another reason to consider adding it.

The only other part of the lawsuit is a 17200 “unfair” business practices claim based on YouTube’s alleged mishandling of his situation. The court says the plaintiff improperly asserts 17200 for claims that are otherwise really the provenance of contracts or torts, and it therefore rejects the claim.

A while ago, I explained why I think Section 230(c)(2) (not mentioned in this ruling) should give YouTube virtually unfettered discretion to deal with perceived site abuse.

Case citation: Kinney v. YouTube, LLC, 2018 WL 5961898 (Cal. App. Ct. Nov. 14, 2018)

Other YouTube Remove-and-Relocate Posts:

* YouTube Defeats Another Remove-and-Relocate Lawsuit–Song Fi v. Google
* YouTube Defeats Defamation Claim in ‘Remove-and-Relocate’ Case–Bartholomew v. YouTube
* YouTube Defeats Another Remove-and-Relocate Case–Darnaa v. Google
* Google Loses Two Section 230(c)(2) Rulings–Spy Phone v. Google and Darnaa v. Google
* Section 230 Protects YouTube’s Removal of User’s Videos–Lancaster v. Alphabet
* YouTube Wins Another Case Over Removing And Relocating User Videos (re Lewis v. Google)
* Can YouTube ‘Remove And Relocate’ User Videos Capriciously?–Darnaa v. Google
* Section 230(c)(2) Gets No Luv From the Courts–Song Fi v. Google
* Venue Clause in YouTube Terms of Service Upheld–Song Fi v. Google