Venue Clause in YouTube Terms of Service Upheld–Song Fi v. Google

This is a dispute over YouTube’s takedown of a music video. Song Fi, along with Rasta Rock, Joeseph Brotherton, and his six year old son, sued YouTube for taking down their video titled “LuvYa LuvYa LuvYa.” YouTube said it removed the video because Song Fi allegedly manipulated the view count and thus breached its terms of service.Screen Shot 2014-11-04 at 12.42.17 PM YouTube eventually re-instated the video but at a different URL, which meant that the prior view counts, comments and likes were permanently lost.

[Eric’s note: I couldn’t find the video online, not that I tried really hard. The domain rolls over to, an “under construction” Wix page. On the Rasta Rock Facebook page, they link to the dead URL, and their channel page doesn’t list the reinstated video. It’s too bad, because (based on the song title alone) I’m sure the music was really excellent.]

Plaintiffs sued in the district court for the District of Columbia, alleging breach of contract, libel, and tortious interference. Their request for a TRO was denied, and the court construed Google’s opposition as a request to transfer venue. After further briefing, the court granted Google’s request and moved the dispute to the Northern District of California.

YouTube’s terms of service contained a venue clause, and when Song Fi uploaded the video, they agreed to the terms, including the venue clause. Thus, Song Fi had an uphill battle on venue. They raised three arguments, none of which get any traction with the court.

First, the plaintiffs other than Song Fi said they shouldn’t be bound by the terms of service since they did not agree to it. The court says that non-parties who are “closely related to the contractual relationship” and where it’s foreseeable that they would be bound. Here, the parties were all related and all of the claims stem from YouTube’s allegedly improper removal and reinstatement of the video.

Second, plaintiffs argued that YouTube’s “active communication” with end users about why the video was taken down transformed YouTube from a passive website to an active one, which somehow nullified the venue provision. Understandably, the court rejects this argument.

Finally, plaintiffs make an unconscionability argument. The court applied D.C. law on unsonscionability (which in any event is similar to California’s). The court says the user agreement is neither procedurally nor substantively unconscionable. The terms were not forced on plaintiffs, and they had some meaningful choice–they could have “publicized the . . . video by putting it on various other file-sharing websites or on an independent websites.” Sure, many of the terms in the agreement favor YouTube, but nothing in the agreement was shocking to the conscience. Finally, there is nothing wrong with requiring venue in Northern California. It’s admittedly a cost-management mechanism by YouTube, and these are the types of things that allow YouTube to make its services available for free.


This is an odd dispute. It’s unclear exactly what plaintiffs are complaining about. (Access a copy of the Complaint here.) They may be understandably frustrated with YouTube’s administrative process. If it’s that YouTube did not restore the video to precisely the previous location where the video was hosted, this seems like an extremely difficult argument to make. This is somewhat similar, or maybe even tougher, to arguing account termination, which courts have repeatedly rejected (see Eric’s article on that topic). Perhaps as Eric notes, they are complaining about the lost likes or subscribers, or SEO. Those arguments are always tough, and we’ve yet to see an opinion (nor are we likely to) that says a platform cannot wipe out accrued fans, subscribers, or SEO juice.

Now that the dispute is in California, plaintiffs will likely withdraw (or should consider withdrawing) their tortious interference and defamation claims, which will have to overcome an anti-SLAPP motion. The rest of their complaint is not likely to fare very well against YouTube’s contract provisions and YouTube’s protections under Section 230.

This is a good but expected result for YouTube. We’ve seen a slew of examples lately of terms of use agreements not being upheld either because their implementation was not leakproof or because the companies simply overreached. (Prof. Tushnet flags another recent example of substantive over-reach that kills a terms of service here: “’we can do anything’ ToS might be unconscionable, providing remedy for loss of music.”) YouTube’s terms had some wonky provisions (e.g., “the service shall be deemed a passive website”), but it’s not too surprising to see it enforced again.

Eric’s Comments: I’ve seen several lawsuits over YouTube’s allegedly improper removals of videos (the Darnaa suit immediately comes to mind). I can understand the plaintiffs’ frustration. They often do a lot of work promoting links to their YouTube uploads, and all of these links are broken even if the video is reinstated to another URL. The link-breaking undercuts the time and financial investments into a possibly time-sensitive campaign to promote the video. Further, the lost view counts can affect the video’s visibility in various YouTube rankings, resulting in fewer future views. It has to be especially frustrating because any complaints about the removal will go into YouTube’s black-box customer “support,” which is opaque at best.

Still, it’s hard for me to ignore that YouTube uploaders make investments in cloud platforms that they don’t fundamentally control. Facebook users run into the same problem. As a result, cloud service providers’ removal or termination decisions–even if capricious–can moot substantial investments by their users. That’s the basic deal, and I’m always surprised when other people are surprised by this. In this article, I explain why service provider discretion is ultimately a good thing. Ultimately, YouTube was a more attractive location for the video than the plaintiffs’ own website (which they aren’t managing too well as it is) because it should get more visibility and stirs more viral engagement, but all of those benefits come because YouTube manages its platform to weed out problems. Plaintiffs like the ones in this case want it both ways–they want the benefit of the curated platform without being subject to the curation that made the platform attractive to them in the first place. Sadly, they can’t have it both ways.

The upholding of YouTube’s venue selection clause is hardly surprising. Google has won a string of cases upholding its venue selection clause. However, the extension of the contract to non-signatories, though logical in this case, is a powerful holding with interesting implications for all purveyors of online contracts.

With YouTube’s contract now judicially affirmed, the various contract provisions (plus Section 230) will help to eviscerate the plaintiffs’ complaint.

case citation: Song Fi v. Google Inc., 14-1283 (RMC) (D.D.C. Oct. 29, 2014)

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