Ninth Circuit Easily Dismisses YouTube Remove-and-Relocate Case–Darnaa v. Google

November 25, 2018 · by · in Derivative Liability, Licensing/Contracts, Marketing, Spam

This is one of the many lawsuits against YouTube for removing videos and relocating them to a new URL, which resets the view count and breaks inbound links. This case, involving the “musician” Darnaa, generated a little buzz a couple of years ago when she overcame Google’s Section 230(c)(2) defense. Mostly, that ruling demonstrated how Section 230(c)(2) continues to wither as a safe harbor. Despite that early “win” for Darnaa, the district court eventually dismissed Darnaa’s claim, which she appealed to the Ninth Circuit.

The appeal wasn’t even close. The panel dismissed the case in a memo opinion without oral arguments.

YouTube’s TOS “forecloses damages arising from ‘any interruption or cessation of transmission to or from [YouTube’s] services,’ or ‘any errors or omissions in any content,'” and the district court found that those limitations helped Google’s defense. Darnaa argued that the provision was unconscionable. The court says the availability of marketplace alternatives lessens any procedural unconscionability:

Darnaa alleges that music industry practices have rendered YouTube the only viable choice for displaying videos. But the relevant standard is whether “reasonably available” alternatives exist, not equally dominant or popular alternatives. Indeed, Darnaa’s complaint acknowledges that artists can display their music videos on various websites. Finally, the provision does not bear other indicia of undue surprise, as it is clearly identifiable and printed in all caps.

The court says the provision isn’t substantively unconscionable because “YouTube offers its video streaming services at no cost to the user, [so] it has a valid commercial need to limit liability for actions taken to regulate its platform” [cite to Lewis].

The Darnaa case was filed in April 2014. Barring an appeal to the US Supreme Court (which would have zero chance if filed), this case has quietly reached its entirely predictable denouement after 4.5 years of litigation. What an expensive waste on all sides.

Case citation: Darnaa v. Google LLC, 2018 WL 6131133 (9th Cir. Nov. 21, 2018)

Other YouTube Remove-and-Relocate Posts:

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