Another Must-Carry Lawsuit Against YouTube Fails–Daniels v Alphabet
Daniels, a/k/a “Young Pharoah,” posted videos to YouTube, apparently of the #MAGA genre. YouTube removed some videos, allegedly “shadowbanned” him (again, I raise questions whether that’s the appropriate term here), and allegedly kept money it should have paid to him. (This looks like a situation where YouTube applied overlapping content moderation remedies). He sued YouTube for a variety of claims, all of which fail.
Personnel note: the plaintiff’s lawyers are Maria Cristina Armenta and Credence Elizabeth Sol, and this isn’t their first appearance on the blog. They will always hold special status in Internet Law for their ultimately-unsuccessful censorial efforts to force YouTube to remove the Innocence of Muslims video. Now, they are working–again unsuccessfully–to impose censorial must-carry obligations on Internet services.
The opinion covers the standard ground. A couple things to note:
State Action. Daniels claimed that censorial exhortations from Reps. Pelosi and Schiff turned YouTube into a state actor. I discussed this issue in this post about AAPS v. Schiff. TL;DR: it’s terrible when members of Congress ask Internet services to censor, but their garden-variety jawboning doesn’t convert the Internet services into state actors.
Section 230. The court says the defense admitted that Section 230(c)(1) wouldn’t preempt a breach of contract claim. We know this isn’t true. I’ve blogged many cases where Section 230(c)(1) did apply to contract breach claims (and I’ll blog another one soon), including Murphy v. Twitter, a California appellate court that made it 100% clear that Murphy’s contract claims didn’t get around Section 230(c)(1). I believe the court was trying to say that Google wasn’t pressing the Section 230 claim against the plaintiff’s efforts to collect withheld payouts; but the court’s wording was broader, and it makes no sense why the court discussed the contract limits only with respect to Section 230(c)(1) but then turned around and immediately discussed Section 230(c)(2)(A).
Indeed, the court says that Section 230(c)(2)(A) preempts all of the state law claims other than YouTube’s failure to pay. Daniels made the standard argument that YouTube’s removals were in bad faith, but the court says that bare assertion wasn’t enough. Unlike Enigma v. Malwarebytes, “Mr. Daniels does not allege that he is in direct competition with defendants, or that defendants’ removal of his videos stemmed from an anticompetitive animus.” And unlike Song Fi v. Google, “Mr. Daniels does not allege that YouTube removed or restricted access to his videos for a reason unrelated to their content.”
It’s great, but a bit surprising, to see the court’s muscular application of Section 230(c)(2)(A), which parallels the (uncited) Second Circuit Domen v. Vimeo ruling. So long as courts push back on plaintiffs’ weak pleading–like this court did–Section 230(c)(2)(A) could have a valuable role to play in the account termination/content removal space. Instead, I fear other judges will not consistently pushback on weak allegations of bad faith, which is the primary reason why Internet services have avoided relying on Section 230(c)(2)(A) defenses. Still, I’m adding Domen v. Vimeo to the next edition of my Internet Law casebook because I think it’s time to teach 230(c)(2)(A) more seriously.
The plaintiff can replead the contract breach claim for failure-to-pay, but the case has lost all of its ideological implications about must-carry obligations and instead has devolved into a routine collections case (that will likely fail anyways).