Monday, January 25, 2016

Lewis v. YouTube LLC (Cal. Ct. App. - Jan. 25, 2016)

YouTube can totally screw you and delete all your videos, in violation of its own Terms of Service, and there's nothing whatsoever you can do about it.

So holds the California Court of Appeal.

I'm not even sure I understand Justice Mihara's opinion on its own terms.  YouTube here deleted the legions of things that plaintiff had posted and banned her from the platform.  YouTube eventually did relent, and let her back on.  (Whether that was before or after the lawsuit was filed is unclear.)  But it didn't put any of her stuff back on; it simply gave her back "access" to YouTube so she could post her videos again were she to so choose.  (But her views, comments, etc. would still be lost forever.)

The Court of Appeal admits that YouTube's ban was in violation of its own Terms of Service, but says there's no remedy -- hence no lawsuit -- since the TOS completely bars damages and specific performance isn't available since YouTube has now let her back on.  First, if letting her back on was not alleged in the complaint, or didn't happen until after the lawsuit was filed, I'm not sure how that gets in on a demurrer, or justifies its grant.  Second, I don't see how letting her back on -- especially sans all her prior content -- at all moots specific performance.  On the Court of Appeal's theory, it'd be fine for YouTube to ban you every single time you posted anything as long as, once you told 'em that was a violation of their TOS, they then let you back on -- even if that transpired a thousand times and meant that your content was never on for more than a second at a time.  I'm quite confident that's not what the TOS say, or are reasonably interpreted to say, when they tell you that you'll be allowed to use YouTube so long as you comply with the TOS.

There's not supposed to be a right without a remedy.  The TOS grants a right.  I think there should be at least some sort of meaningful remedy -- even if not damages -- when the party that drafted those terms concedes (at least for purposes of a demurrer) that it violated them by kicking off someone for no good reason and deleting forever every single aspect of her content.

But maybe that's just mushy-headed me.