Does anyone out there read the terms and services of any of the online services you use on a regular basis? I’m guessing the overwhelming majority of my readers would answer “no.” But just because no one reads them doesn’t mean they’re meaningless. A plaintiff in a federal lawsuit in the Northern District of California recently found out how much they count when the court dismissed its lawsuit against YouTube.
The plaintiff was a limited liability company called Darnaa, LLC. The LLC is an independent music label that promotes and produces an artist called Darnaa. I confess I am not familiar with her work. Nor do I understand why she uses two “a”s at the end of her name. But I digress.
Darnaa (the LLC) uploaded a video of Darnaa (the artist) performing the music video “Cowgirl” to YouTube. Sometime after Darnaa posted the “Cowgirl” music video, YouTube removed the video from its original location, later reposting it at a new URL with its view count reset to zero. YouTube contended the music video allegedly violated section 4.H of YouTube’s Terms of Service.
Section 4.H of YouTube’s Terms of Service prohibits the use of automated tools for increasing the view count of videos posted on its site:
You agree not to use or launch any automated system, including without limitation, ‘robots,’ ‘spiders,’ or ‘offline readers,’ that accesses the Service in a manner that sends more request messages to the YouTube servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser.
Darnaa denies that it did any such thing, and sued YouTube for defamation based on the notice YouTube posted explaining why it moved the video. Unfortunately for Darnaa, the complaint was filed more than a year after YouTube posted the notice. According to a different section of YouTube’s terms of service, users needed to bring actions within one year.
Undeterred, Darnaa argued it was not bound by the terms because they were “unconscionable.” Contract terms are unconscionable and therefore unenforceable if they result in overly harsh or one sided results because one contracting party has unequal bargaining power over the other. Simply put, if one side is able to truthfully say “take it or leave it” and the other side pretty much has to take it – unduly harsh terms that result are unconscionable.
The court agreed with Darnaa that YouTube’s terms of service constituted a “contract of adhesion.” That’s a legal term for “take it or leave it.” There is no negotiating with YouTube over the terms. But the court disagreed that Darnaa had no choice. Darnaa could have used another service. And Darnaa’s own complaint may have sunk the defense, when it noted “there are various websites on which a recording artist can display his or her music videos.” The fact that YouTube dominates the field was not enough to leave Darnaa with no choice.
And the court didn’t see the term that shortened the time for bringing suit as terribly unreasonable. One year is plenty of time to bring a lawsuit. And the court pointed to another California case where court upheld a contract that shortened the time for bringing suit to three months.
The point of the lawsuit? Feel free to use and enjoy YouTube (and it is a great service in my estimation) but know that if you get in a dispute, the rules are already set. And courts aren’t likely to change them.