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“A Lion acts tough in the Haunted Forest- until a little girl proves he’s really a coward.” (Quote from a 1949 Lowe’s, Inc. movie ‘Lobby Card.’)

     During the past year or so we’ve seen a huge uptick in the number of content provider complaints related to alleged ‘censorship’ by platforms such as Youtube® and Facebook®. The alleged censorship takes various forms, such as ‘de-monetizing’ (i.e. removing the content provider’s ability to have ads placed on their channel, i.e., no revenue from views), allegations that the platform has ceased to notify followers of the content provider’s new postings, and even outright ‘banning’ of content provider channels.

     For example, in April, commentators “Diamond and Silk” (“D&S”) alleged that Facebook, without explantation, had stopped notifying followers of D&S’ newly posted content (see story here).  D&S alleges that they have been trying to resolve the issue with Facebook since September of 2017.  In April 2018, however, according to D&S, Facebook informed them that:

“The Policy team has came to the conclusion that your content and your brand has been determined unsafe to the community.”

    Now, to be fair, Facebook’s CEO has claimed that the charge against D&S was “an enforcement error” and that Facebook was working to reverse the error (see related story here).

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(1939 Wizard of Oz movie poster)

    Nonetheless, many content providers are left wondering if some of their favorite platforms may be engaging in some form of new and puzzling– shall we say,… “content curating.” While labeling a platform’s conduct as “censorship’ might be legally inaccurate, without clear and unambiguous disclosure on the part of a particular platform, it shouldn’t be surprising that some users perceive they are being treated unfairly.

     Alleged “censorship” via providers such as YouTube and Facebook bring up all kinds of interesting legal angles, but most of these angles are viewed as non-starters. One reason for this is that nearly every platform has an all-encompassing and (in our humble opinion) extremely self-serving terms of service.  And even a seemingly “lopsided”  terms of service agreement will nearly always be viewed as a valid contract between a content provider and the platform (provided there no other issues with the contract). This is particularly true where the platform provides its services for “free” (see for example, the Darnaa case, noting that limitations provisions are generally upheld particularly where the beneficiary provides a high-risk, low compensation service).

    For example, about a year ago, the U.S. District Court in San Francisco (in SongFi, Inc. v. Google, Inc.) relied in part on a related D.C. district court decision, which in turn addressed whether Google/YouTube’s terms of service and venue selection clauses are legally unconscionable. The D.C. court found that YouTube’s terms of service were not unconscionable, nor was YouTube’s venue selection clause that required the case to be litigated in Santa Clara county, California.

    Even more devastating for the plaintiff in SongFi, the court found that the terms of service agreement gave YouTube the unilateral right to remove the plaintiff’s video and to eliminate its view count, likes, and comments. Thus, the court reasoned,

Plaintiffs cannot state a claim for breach of the Terms of Service in removing the video, because conduct authorized by a contract cannot give rise to a claim for breach of the agreement.

    Notwithstanding the SongFi case, however, the court in DARNAA v. Google  found that certain portions of YouTube’s terms of service were ambiguous. Under California law, an ambiguous contract is generally construed against the party drafting the contract (e.g. under Cal. Civil Code § 1654). The court thus declined to dismiss the plaintiff’s claims against Google for contractual breach of the covenant of good faith and fair dealing.

     Likewise, the court declined Google’s motion to dismiss those same claims under YouTube’s “limitation of liability” provision in the terms of service. That provision stated, in part, that YouTube wasn’t liable for any direct or indirect damages- no matter the law upon which plaintiff’s damages claim might be based.

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A 1939 Oz movie poster that was reissued in 1998 (For more info, see the movieposter.com website)

     Although the court’s reasoning on this point is very nuanced, this portion of the decision holds some important concepts. The court upheld YouTube’s limitations provision as valid, but only as to unintentional tort claims. The court refused to dismiss the plaintiff’s intentional tort claims (intentional interference and breach of the implied covenant of good faith and fair dealing) notwithstanding the limitations provision. The court reasoned that any contractual provision providing a release for future acts of fraud and other intentional wrongs is invalid under California law (see California Civil Code § 1668).

     While each of the above cases revolves around its own unique set of facts, they each illustrate the important role of the terms of service document. One-sided or not, courts are likely to look to the terms of service as governing the content provider’s relationship with the platform.

      As the caselaw evolves we should expect to see platforms tweak their terms of service agreements to correct perceived ambiguities and to revise provisions that might be construed to violate public policy.

     In the interim, take the time to read your platform’s terms of service and, if at all possible, vote with your feet! There will be new platforms to compete with YouTube, Facebook and others. Although taking on a new platform might not yet provide the convenience and extensive reach of established platforms like YouTube, growth of competing platforms will go a long way to provide better services and a more equitable relationship between content providers and platforms.

P.S. You may have guessed that today’s title derives from a line from Judy Garland’s character “Dorothy” in the 1939 film, Dorothy and the Wizard of Oz: “Lions and Tigers and Bears, oh my!” The Wizard of Oz film will turn 80, next year, in 2019. Our header image is from a 1939 Oz “lobby card”- this one probably being a rare one. The movieposter.com website is “out of stock” on this particular card, but it usually sells for $3899.99! Check out movieposter.com’s website for other interesting film memorabilia.

If you love movie posters, also check out Cavan Scott’s (of Creative Bloq) article on “The Top 25 movie posters of all time.” A great quote from the article:

An iconic movie poster is one that has been burned onto the public consciousness, something that has become so recognisable that you feel you’ve always known it. It should spring to mind as soon as you hear the film’s name, and trigger excitement no matter how many times you see it.

While the Wizard of Oz posters didn’t make Creative Bloq’s top 25, the article is fascinating and a really good read.

 

This post is intended to convey general information only and should not be construed as a legal opinion or legal advice.  Any opinions expressed are our own. Readers should not take any action, or refrain from taking any action, based upon the information contained in our site and posts, but should consult with their own attorney concerning their own situation and  their specific legal questions. Visiting our website, reading posts and/or posting comments does not establish any form of attorney-client relationship with us.

 

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