Two recent cases serve as a reminder of the key role an online service provider’s (OSP) terms of service play in social media marketing. The courts in Darnaa, LLC v. Google, Inc., 2015 WL 7753406 (N.D. Cal. Dec. 2, 2015) and Lewis v. YouTube, LLC, 2015 BL 428281 (Cal. App. 6th Dist. Dec. 28, 2015), came to differing interpretations of YouTube’s Terms of Service, leading to disparate results for similar plaintiffs.
In Darnaa, YouTube moved plaintiff Darnaa’s music video “Cowgirl” to a new location and reset its view count on the grounds that Darnaa used automated tools in violation of YouTube’s Terms of Service to increase its view count. Darnaa sued, alleging YouTube’s actions were a breach of the covenant of good faith and fair dealing. The United States District Court for the Northern District of California found that it was unclear whether YouTube’s Terms of Service allowed it to unilaterally remove videos and their “view counts” whenever YouTube determined those Terms had been violated. Accordingly, the court ruled that the allegations in Darnaa’s complaint were sufficient to support a claim for a breach of the covenant of good faith and fair dealing. Though the court dismissed Darnaa’s claims on the procedural grounds that it was filed late, it permitted Darnaa to refile if she could plead a compelling justification for her late filing.
Continue Reading YouTube Rulings Emphasize the Importance of an OSP’s Terms of Service in Social Media Marketing