United States District Court, N.D. California
DEANNE Q. LANCASTER, Plaintiff,
ALPHABET INC., et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS RE:
DKT. NO. 17
HAYWOOD S. GILLIAM UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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
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.
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
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).
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
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.
The Communications Decency Act Bars Plaintiff's Claims
Premised Upon YouTube's Removal of
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.
§ 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).
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.").
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.").
Plaintiff's Claims Fail to State a Claim Upon Which
Relief Can Be Granted
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.
Declaratory Relief (Claim One)
first claim requests a declaration that YouTube's Terms
of Service are unconscionable and therefore ...