United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
action claiming breach of the covenant of good faith and fair
dealing, defendants move to dismiss the second amended
complaint. For the reasons stated below, the motion is
relevant times, defendant YouTube, LLC, a wholly-owned
subsidiary of defendant Google Inc., operated an Internet
service, also called YouTube, on which users could view and
distribute digital videos. YouTube, LLC, required users
seeking to distribute videos on the YouTube service to
“electronically agree to” a terms of service
agreement before posting any videos (Second Amd. Compl.
¶¶ 8, 13-14).
4(H) of the terms of service agreement prohibited the use of
automated systems to access the video distribution service
(id., Exh. 1 § 4(H)).
10 of the agreement provided a “Limitation of
Liability” as follows (id. § 10)
(emphasis in original):
IN NO EVENT SHALL YOUTUBE . . . 1BE LIABLE TO YOU FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM . . . (IV)
ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR
SERVICES . . . [OR] (V) ANY ERRORS OR OMISSIONS IN ANY
CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A
RESULT OF YOUR USE OF ANY CONTENT . . . WHETHER BASED ON
WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY . . . .
14 included a choice-of-law provision selecting “the
internal substantive laws of the State of California, without
respect to its conflict of laws principles.” It also
provided that any dispute would be “decided exclusively
by a court of competent jurisdiction located in Santa Clara
County, California” (id. §
final two sentences of Section 14 - which were also the final
two sentences of the agreement - appeared in all capital
letters, unlike the rest of that section (ibid.)
(emphasis in original):
YOU AND YOUTUBE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF
OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR
AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF
ACTION IS PERMANENTLY BARRED.
action concerns defendants' decision to remove our
plaintiff's video from the YouTube website. The instant
motion concerns: (1) whether this action can be considered
timely within the one-year limitations period in Section 14
of the terms of service agreement by applying equitable
tolling for the time during which our plaintiff pursued the
instant claims in an action that was dismissed pursuant to
the forum-selection clause and (2) whether the claims in the
operative complaint are barred by limitations-of-liability
clause in Section 10 of the terms of service agreement. This
order first sets forth the underlying facts of the dispute
and the procedural history.
Darnaa, LLC, owned and operated an independent music label,
which produced and promoted the recordings and performances
of its clients pursuant to exclusive contracts in exchange
for a share of its clients' revenue. Our plaintiff's
namesake, a new and aspiring pop musician whose stage name
was Darnaa, became a Darnaa, LLC's client. Darnaa's
body of work included various music videos that Darnaa, LLC,
made available for view on YouTube's website. This
dispute concerns the music video for Darnaa's song titled
“Cowgirl, ” which Darnaa, LLC, posted on the
YouTube website on March 4, 2014, as part of an extensive
promotional and advertising campaign in advance of the
release of recordings of that song for sale in various online
digital music stores. Darnaa, LLC, partnered with various
third parties, including Clear Channel Communications, which
operated an Internet radio platform. The promotional
materials all used the specific uniform resource locator
(“URL”) address assigned to the video on the
YouTube service (Second Amd. Compl. ¶¶ 9-10,
March 21, 2014, Darnaa, LLC, learned that defendants had
removed the “Cowgirl” video from the YouTube
service, such that users could no longer view the video.
Darnaa, LLC, contacted defendants who stated that the video
had been removed due to violations of Section 4(H) of the
terms of service agreement, which prohibited automated
systems to use the YouTube service to artificially inflate
video view counts. Darnaa, LLC, explained the nature of its
promotional efforts and asked that defendants restore the
video to its original URL by the next week (id.
declined to restore the “Cowgirl” video to the
YouTube service with the same URL. On April 7, 2014, Darnaa,
LLC, commenced an action against Google in Los Angeles County
Superior Court, alleging interference with prospective
economic relations, and seeking injunctive relief restoring
the video to the YouTube service at the same URL. Darnaa,
LLC, sought a temporary restraining order on April 14, which
Google opposed. The application for a temporary restraining
order was denied on April 18 (id. ¶¶
35-36, Exh. 3).
April 28, defendants restored the video to the YouTube
service, but with a different URL. Clear Channel offered to
promote the “Cowgirl” video at the new URL at no
additional charge, but on April 30, defendants again removed
the video (id. ¶¶ 32-33).
2014, Google moved to transfer venue to Santa Clara County
Superior Court, seeking to enforce the forum-selection clause
in Section 14 of the terms of service agreement. At a hearing
on August 28, 2014 at which counsel for both sides appeared,
Judge Michael Stern granted the motion. The minute order read
as follows, in pertinent part (id., Exh. 4):
The motion is called and argued.
The motion is granted.
The Court orders this case dismissed without prejudice.
Plaintiff's counsel will re-file this action in Santa