OAKLAND, Calif. (CN) — A federal judge Tuesday indicated she would dismiss claims that Google and YouTube defamed music publisher Song Fi and interfered with its business when they took down a music video.
Senior U.S. District Judge Claudia Wilken seemed inclined to grant summary judgment to Google and YouTube, citing a November ruling from a California appeals court in a similar libel case, Bartholomew v. YouTube, and the possibility that several of the plaintiffs’ allegations were false.
“I’m quite concerned about this claim you’ve been making all along, that someone at Nike saw this notice and believed there was some sort of problem with children in this video,” Wilken told plaintiff Song Fi’s attorney Charles LiMandri.
“This is quite concerning, these allegations of pretty much falsehoods.”
Song Fi, a broadcaster and distributor of independent music, sued Google and YouTube in 2014 for taking down the video “LuvYa” by Rasta Rock Opera and replacing it with a message saying the video violated YouTube’s terms of service. The case was amended and removed to California from Washington later that year.
The video, which is about two six-year-olds with a mutual crush who go to lunch together on Valentine’s Day – amassed 23,000 views in eight weeks, tripping YouTube’s fraud prevention system. YouTube said an internal investigation found that an “overwhelming” number of the views were spam designed to inflate the view count.
Song Fi denied it. It claimed the notice was defamatory, causing one of its backers, nonparty Precision Contracting Solutions, to cut off funding, and prompting Nike to pull a sponsorship for a concert at a Washington-area store due to concerns that the video portrayed children inappropriately. Song Fi said it also had to cancel a tour and a commercial.
On Monday, YouTube attorney Brian Willen said those claims were false. Willen said two Nike executives stated in sworn declarations that they never saw the YouTube notice and had not canceled the concert because of it. Nike told Rasta Rock manager Stephen Sieber to cancel the concert after learning he had gotten permits for it using Nike’s name without clearing it with the company, Willen said.
Precision Contracting Solutions never cut off funding, and it was connected to a family member of one of Rasta Rock’s musicians, he said.
LiMandri rebutted, saying a Nike store manager in Washington told Sieber that Nike saw the notice and canceled the concert because of it.
Judge Wilken was not persuaded. She called Sieber’s assertion hearsay.
“The only thing they’re relying on is Mr. Sieber’s obvious hearsay,” Willen said. “Some Nike employee told him something. That’s categorical hearsay.”
Urging Wilken to grant his clients summary judgment, Willen asked her to consider the ruling in Bartholomew, which rejected an identical libel claim arising from the same YouTube notice at issue in Song Fi.
The Bartholomew court held that the notice, whether alone or combined with YouTube’s community guidelines, is not defamatory.
LiMandri said Wilken was not bound by Bartholomew “if there is convincing evidence that the California Supreme Court would decide differently than the California Court of Appeal. We believe your honor did already do that.”
LiMandri was referring to Wilken’s June 2016 order dismissing antitrust and fraud claims without leave to amend. But Wilken then upheld libel and tortious interference claims, finding that the notice YouTube posted was understood by viewers to refer to the plaintiffs themselves, and that the notice disrupted the plaintiffs’ economic relationship with Precision Contracting Solutions.
“We thought what we thought, but the California Court of Appeal read what we said and disagreed and thought differently,” Wilken replied.
LiMandri is with LiMandri & Jonna in Rancho Santa Fe; Willen with Wilson Sonsini Goodrich & Rosati in Palo Alto.