Lancaster v. Alphabet Inc.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS RE: DKT. NO. 17

          HAYWOOD S. GILLIAM UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendants' motion to dismiss Plaintiff's complaint in its entirety. Dkt. No. 17 ("Motion"). For the reasons articulated below, the Motion is GRANTED.

         I. BACKGROUND

         On September 25, 2015, pro se Plaintiff Deanne Lancaster filed the current action against Defendants Alphabet Inc., Google Inc., and YouTube, LLC in Santa Clara Superior Court. Dkt. No. 1-1 ("Compl."). Defendants removed the action to this Court on November 19, 2015. Dkt. No. 1.

         While the complaint is difficult to parse, Plaintiff's allegations appear to arise out of the operation of YouTube's Digital Millennium Copyright Act ("DMCA") takedown process. See Compl. ¶¶ 1-7. Plaintiff contends that YouTube runs a DMCA scheme in which it "misrepresent[s] the true copyright holder of public domain videos uploaded by YouTube partners" thereby permitting "false copyright claimants who create false websites and dishonestly claim the rights to public domain videos to steal earnings from YouTube partners." Id. ¶¶ 1, 32.

         Plaintiff asserts that she is a YouTube "partner, " which enables her to share revenue from advertisements that Google places on videos that she uploads to her YouTube channel. See Id. ¶ 9. According to Plaintiff, in furtherance of its DMCA scheme, YouTube has removed videos and advertising from Plaintiff's YouTube channel in response to false copyright claims and thus has misdirected advertising revenue to which Plaintiff is entitled to such false copyright claimants. See Id. ¶¶ 86-97. Further, Plaintiff alleges, YouTube "has abused and harassed partners" that, like Plaintiff, are not complicit in its DMCA scheme. See Id. ¶ 1. Plaintiff contends that Defendants have continuously harassed her by, for example, hacking, cyberstalking, and intercepting her electronic communications, and that these actions have caused her physical and emotional suffering. See e.g., ¶¶ 39, 41, 44, 48, 52.

         Plaintiff asserts ten causes of action: (1) a request for a declaration that she is entitled to seek punitive damages in arbitration; (2) fraud; (3) aiding and abetting; (4) harassment; (5) intentional infliction of emotional distress; (6) breach of the covenant of good faith and fair dealing; (7) copyright infringement; (8) email tampering; (9) computer hacking; and (10) negligence.

         II. DISCUSSION

         In their Motion, Defendants articulate four main reasons that Plaintiff's complaint must be dismissed: (1) Plaintiff's claims are barred by § 512(g) of the DMCA; (2) Defendants are immune from liability under § 230 of the Communications Decency Act, 47 U.S.C. § 230(c) ("CDA"); (3) Plaintiff's claims are precluded by YouTube's Terms of Service and Partner Program Terms; and (4) each of Plaintiff's claims fails to state a claim upon which relief can be granted. See Mot. at 2-4. Additionally, Defendants contend that Alphabet, Inc. should be dismissed from this action because it is not a proper defendant. Id. at 24-25.

         The Court holds that Plaintiff's complaint must be dismissed in its entirety because it is barred in part by § 230 of the CDA and fails to state any claim. Accordingly, the Court need not address Defendants' arguments that Plaintiff's claims are precluded by § 512(g) of the Digital Millennium Copyright Act, YouTube's Terms of Service, and YouTube's Partner Program Terms.^[1]

         A. Legal Standard

         Federal Rule of Civil Procedure 8(a) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 540, 570 (2007). A claim is facially plausible when a plaintiff pleads "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In reviewing the plausibility of a complaint, courts "accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, Courts do not "accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). And even where facts are accepted as true, "a plaintiff may plead [him]self out of court" if he "plead[s] facts which establish that he cannot prevail on his . . . claim." Weisbuch v. Cnty. of Los Angeles, 119 F.3d 778, 783 n.1 (9th Cir. 1997) (quotation marks and citation omitted).

         "Pleadings must be construed so as to do justice." Fed.R.Civ.P. 8(e). For that reason, while courts cannot "supply essential elements of the claim that were not initially pled, " Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992), as amended (Oct. 9, 1992), "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers, " Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotations marks and citations omitted). If dismissal is still appropriate, a court "should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quotation marks and citation omitted). Where leave to amend is appropriate, "before dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

         i. The Communications Decency Act Bars Plaintiff's Claims Premised Upon YouTube's Removal of Videos

         The Court agrees with Defendants that § 230 of the CDA prohibits any claim arising from Defendants' removal of Plaintiff's videos. See Mot. at 12-14.

         Under § 230(c)(1) of the CDA, "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). Thus, § 230(c)(1) bars a plaintiff's claim if (1) the defendant is a "provider or user of an interactive computer service"; (2) the information for which the plaintiff seeks to hold the defendant liable is "information provided by another information content provider"; and (3) the plaintiff's claim seeks to hold the defendant liable as "the publisher or speaker" of that information. See Sikhs for Justice "SFJ", Inc. v. Facebook, Inc., 144 F.Supp. 3d 1088, 1092-93 (N.D. Cal. 2015) (quoting 47 U.S.C. § 230(c)(1)). An "interactive computer service" is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C. § 230(f)(2). To determine whether a claim seeks to treat a defendant as a "publisher or speaker, " "courts must ask whether the duty that the plaintiff alleges the defendant violated derives from the defendant's status or conduct as a "publisher or speaker." Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009), as amended (Sept. 28, 2009).

         Under the three-prong test articulated in Sikhs for Justice, Plaintiff cannot assert a claim based on Defendants' removal of her videos. The Court finds, and Plaintiff appears to concede, that YouTube and Google are "interactive computer services." See e.g., Compl. ¶¶ 9, 30 (alleging that Plaintiff uploads videos to Google's video upload service, YouTube, in order to "share her video poems with a greater audience" and "entice new viewers to her poems"). Several other district courts are in accord. See e.g., Gavra v. Google Inc., No. 5:12-CV-06547-PSG, 2013 U.S. Dist. LEXIS 100127, at *4-*9 (N.D. Cal. July 17, 2013); Jurin v. Google Inc., 695 F.Supp.2d 1117, 1123 (E.D. Cal. 2010). Furthermore, Plaintiff acknowledges that the videos removed from her YouTube channel were not created by Defendants, but were either Plaintiff's poems or public domain videos. See e.g., Compl. ¶¶ 2, 6, 9, 30. Finally, Defendants' decision to "remov[e] content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher." Barnes, 570 F.3d at 1103; see also Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1171 (9th Cir. 2008) ("any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230.").

         Accordingly, the Court holds that § 230(c)(1) of the CDA precludes as a matter of law any claims arising from Defendants' removal of Plaintiff's videos and GRANTS the motion to dismiss to the extent that Plaintiff seeks to impose liability as a result of said removals. Any amendment would be futile, and thus the Court dismisses such claims with prejudice. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) ("Futility of amendment can, by itself, justify the denial of a motion for leave to amend.").

         ii. Plaintiff's Claims Fail to State a Claim Upon Which Relief Can Be Granted

         The Court further agrees with Defendants that each of Plaintiff's claims must be dismissed because each fails to state a claim upon which relief can be granted. See Mot. at 17.

         a. Declaratory Relief (Claim One)

         Plaintiff's first claim requests a declaration that YouTube's Terms of Service are unconscionable and therefore ...