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.
In Lewis, plaintiff Jan Lewis filed a complaint for breach of contract after YouTube suspended her account—also because of alleged evidence that Lewis used automated means to inflate video view counts and comments on her videos. YouTube eventually restored Lewis’ account; however, the newly restored account displayed only Lewis’ videos, and not the view counts and comments that were visible to users prior to the suspension. In contrast to Darnaa, the trial court sustained YouTube’s demurrer to the plaintiff’s complaint without leave to amend, holding that, pursuant to YouTube’s Terms of Service, it had no obligation to display view counts associated with videos, store its user’s comments, or maintain particular content on a particular location on the service.
These rulings demonstrate not only how important it is for businesses to mind an OSP’s terms of service when crafting a social media strategy, but also how important it is for OSPs to draft clear and effective Terms of Service that are compatible with their business objectives.