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Judge Skeptical YouTube|is a ‘Rigged Game’

OAKLAND, Calif. (CN) - A federal judge asked for numerous clarifications Tuesday in a case accusing Google and YouTube of unlawfully taking down a music video.

Song Fi Inc. - based in Washington - sued the companies for taking down the video "Luv Ya Luv Ya Luv Ya" and replacing it with a message saying the video violated YouTube's terms of service. The case was removed to California in October 2014.

The video at issue - 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.

This grabbed the attention of Google's fraud-prevention department, and Google claims it suspected Song Fi of artificially inflating the video's view count.

At Tuesday's hearing on Google's motion to dismiss Song Fi's complaint, U.S. District Judge Claudia Wilken asked Song Fi to tighten up its allegations, specifically the claim that Google and YouTube violated antitrust law.

"What is the harm to competition that you're alleging here, and what is the harm to plaintiffs, given that they're not competition to Google in the least?" Wilken said.

Ronald Wick, who argued for Song Fi, said the harm to competition is a "rigged game."

"As we've alleged, there is no music or video website anywhere in the world in terms of marketing that comes close to YouTube," he said.

But Wilken pointed out that YouTube does not actually sell music videos, they just advertise them.

Wick contended that a YouTube video's view count has become "such an important barometer of popularity" that even charts like Billboard factor it into their rankings, and "the smaller artists get attacked and scapegoated and, in this case, defamed."

Brian Willen, who argued for Google, said that "there is not a single allegation in this complaint that whatever agreement is alleged extends to an agreement to remove plaintiffs' videos or videos like it," meaning Song Fi could not plausibly allege a conspiracy.

Nor are there any allegations to support the theory that YouTube engaged in an agreement with major record labels to inflate the view counts of those labels' videos, Willen said.

"This is precisely the kind of speculation and innuendo that does not cross the line from the conceivable to the plausible," Willen said.

"I think what we've seen today is the slipperiness at the heart of this claim. Certainly, the plaintiff can't come to court with entitlement to violate YouTube's terms of service and get away with it."

And with respect to the antitrust allegation, Willen said that Song Fi could not plausibly allege that, for instance, a Justin Bieber video having more than a million views would constitute an injury for Song Fi's video.

By the logic of Song Fi's theory of injury, Judge Wilken added, "one may wonder why Google is even required to be fair."

She added, "Google isn't required by some law of fairness to be fair to small people."

Wilken seemed inclined to let Song Fi amend its complaint, however.

Wick is with Cozen O'Connor in Washington.

Willen is with Wilson Sonsini in New York.

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