YouTuber Loses Lawsuit Over Channel Termination–Mishiyev v. Alphabet
Mishiyev, a/k/a “DJ Short-e,” is a YouTuber who claims he had 100M+ views and 250k subscribers. His videos started getting copyright complaints in 2016. He counternoticed those, but he claims he nevertheless saw traffic dropoffs and started making demands of YouTube. In December 2018, YouTube said it would be terminating his account, which it actually did in May 2019. Mishiyev claims YouTube punished him for threatening YouTube with litigation. YouTube apparently takes the position that he got too many copyright strikes.
Judge Alsup frames the issue: “At bottom, this action is about YouTube’s decision to terminate plaintiff’s account and disable the channels associated with it.” It’s an easy legal call, and Judge Alsup dismisses the case with prejudice.
Contracts. Mishiyev apparently argued that YouTube breached its contract by not restoring his videos in response to counter-notices. This is a bizarre attempt to weaponize Section 512(g) and how TOSes describe the notice/takedown/counternotice process. Fortunately, it goes nowhere: “once a user submitted a counter-notice, the agreement reserved to YouTube’s sole discretion the decision to take any further action, including whether to restore the videos or even to send the counter-notice to the purported copyright owner. Thus, YouTube did not agree to act as a neutral processor of notices and counter-notices. YouTube retained control to evaluate counter-notices and infringement on its own.”
Mishiyev tried to import an implied good-faith-and-fair-dealing covenant into the 512(g) counternotification review, despite contrary express words in the TOS. This also falls flat:
YouTube allowed plaintiff to post videos on its platform free of charge in exchange for a license to its content. Videos infringing intellectual property rights were verboten and YouTube determined that plaintiff did not have the necessary rights to use the content in his videos. Plaintiff does not dispute that determination. According to the only decision plaintiff relies on, our inquiry is over.
Negligence: Mishiyev didn’t plead any duty beyond the express contract terms, which is a no-go.
Tortious Interference: Mishiyev didn’t properly plead which third parties were interfered with.
Of course YouTube can terminate accounts whenever it wants, even by thin-skinned overresponses to legal threats from YouTubers with a sense of entitlement. Numerous cases over the past 2 years have reinforced the unilateral authority of Internet services to decide who they want to provide services to. This case didn’t really advance any novel arguments, so it was always doomed.
It’s especially interesting to think about how the plaintiff sought to put YouTube in a DMCA squeeze. The DMCA damns YouTube and other Internet services for failing to terminate repeat infringers. If plaintiffs could impose good-faith obligations before Internet services terminate accounts, then Internet services would face substantial legal risks with every decision to terminate accounts for copyright strikes.
(This also exposes the illusory nature of Section 512(g)’s safe harbor. In theory, YouTube would choose to opt-in to 512(g)’s safe harbor for honoring counter-notices; however, that protection doesn’t extend to the repeat infringement termination requirement).
While I support YouTube’s discretion to terminate accounts, I can’t ignore the COVID-19 backdrop here. As we are shutting down face-to-face interactions and moving important conversations online, account terminations takes on an even greater impact. For example, our law school is doing distance education using Zoom. If Zoom terminates a professor’s account, the professor’s classes are offline in ways that could disrupt students; and if Zoom terminates a student’s account, the student is basically kicked out of law school. I think this increased dependence will force us to renew some hard conversations about when account termination is legally compelled (like the DMCA’s repeat infringer termination requirement), when it is legally permissible, and when it is legally impermissible.