Metropolitan News-Enterprise


Tuesday, December 29, 2015


Page 1


Panel Upholds Clause Limiting YouTube’s Liability, Rejecting Suit Over Deleted Videos


By a MetNews Staff Writer


A clause in YouTube’s standard contract, limiting its potential liability to users who upload videos, is valid and enforceable, the Sixth District Court of Appeal ruled yesterday.

The court, in an unpublished opinion by Justice Nathan Mihara, upheld the dismissal of a suit by Jan Lewis, who claims that the company deprived her of “the acclaim that her channel received from fellow YouTube users” when it temporarily deleted the channel for what it said was a violation of its terms of service.

Lewis alleged in her complaint that she created a channel, “bulbheadmyass,” on YouTube in 2006. She posted videos of her musical group, “Remington Riders,” between January 2007 and November 2012, gathering nearly 500,000 views.

She alleged that she spent hundreds of hours and thousands of dollars producing the videos, and that she did it solely for recognition “and the opportunity to make new friends,” since the group did not perform in public or market its music commercially.

In November 2012, she alleged, she learned her channel had been deleted. When she inquired as to why, she was told that she had violated the company’s “terms of service” by, among other things, “soliciting other users for commercial purposes,” which she denied having done.

YouTube, she claimed, had violated a covenant of good faith inherent in the terms of service, because the company had taken advantage of the traffic that she had helped generate and that allows YouTube to sell advertising, which is how the company makes its money, since there is no charge to upload or view videos.

A Santa Clara Superior Court judge sustained YouTube’s demurrer, and Mihara agreed that there was no cause of action.

The justice cited a clause in the terms of service stating the company would bear no liability “whatsoever” for damages resulting from, among other things, “errors or omissions in any content or for any loss or damage of any kind incurred as a result of your use of and content posted, emailed, transmitted, or otherwise made available via the services, whether based on warranty, contract, tort, or any other legal theory.”

That clause, Mihara said, “encompassed Lewis’s claim that YouTube wrongfully failed to include her videos, the number of views of these videos, and the comments on the videos by other YouTube visitors on its Web site.”

He also rejected the plaintiff’s claim that she is entitled to specific performance, in the form of an order requiring YouTube to “restor[e] her channel to its condition prior to YouTube’s breach.”

Because her account has been reinstated, the justice said, Lewis is free to re-upload her videos. As for the other deleted material—the view counts and comments associated with the videos prior to their deletion—there is nothing in the terms of service that requires YouTube to display them, the justice noted.

“Since Lewis has failed to identify any provision of the Terms of Service that she seeks to have a court enforce, the remedy of specific performance is unavailable,” he wrote.

The case is Lewis v. YouTube, LLC, H041127.


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