Bowen v. YouTube

Bowen v. YouTube, Inc.
2008 WL 1757578

Facts: Bowen is a registered user of YouTube, Inc (“YouTube”). Other YouTube users posted harassing comments, directed at her, on the website. Bowen contacted YouTube, who terminated the accounts of users that she identified as harassing her. Nevertheless, Bowen sued YouTube.
Only registered users of YouTube can upload videos and post comments. To register, a user must agree to YouTube’s Terms of Use (“TOU”). Under the TOU, users agree to a forum selection clause, which states that (1) the YouTube website is in California, (2) the website is passive, and there is no personal jurisdiction, anywhere but California, and (3) that claims against YouTube “shall be decided exclusively be a court of competent jurisdiction located in San Mateo County, California.”

Procedural History: Bowen brought suit in the U.S. District Court for the Western District of Washington, alleging that her “intellectual property rights have been repeatedly violated.” She did not allege that YouTube had failed to comply with its Digital Millenniums Copyright Act (“DMCA”) obligations, but rather expressed “frustration over having to follow the statutorily mandated notice and takedown procedures established by the DMCA.”
YouTube moved for dismissal based on, among other things, lack of personal jurisdiction.

Holding: Motion to Dismiss granted, subject to Fed. R. Civ. P. 12(b)(2), for lack of personal jurisdiction, based on the forum selection clause and a lack of “something more” to show personal jurisdiction.

Analysis:
• The general rule is that personal jurisdiction is proper if authorized by a state long-arm statute and if the exercise of jurisdiction does not violate due process. To satisfy due process, minimum contacts with the forum state must be shown. The Ninth Circuit test for minimum contacts is (1) whether the defendant has performed some act or transaction or otherwise purposefully availed himself of the privileges of conducting activities in a forum, (2) whether the claim arises out of the defendant’s forum related activities, and (2) whether exercise of jurisdiction is reasonable. An essentially passive website that has done nothing to encourage residents of a forum state to use it is not subject to personal jurisdiction. There must be “something more” to indicate that the defendant purposefully aimed its activity at the forum state.
• “Forum selection clauses ‘should control absent a strong showing that they should be set aside.’”
• There is no showing that the forum selection clause, which Bowen agreed to, should not be enforceable. There is also no showing that YouTube is “something more” than a passive website. Thus, personal jurisdiction is not proper in the U.S. District Court for the Western District of Washington.

Notes: It seems that a number of assumptions are made here, without any analysis, in granting the motion to dismiss, but this may be the result of a lack of allegations on Bowen’s part: First, there is nothing in the opinion to justify that Bowen did in fact agree to the TOU; was it a clickwrap agreement or a browsewrap agreement? The opinion does not say, but rather simply states that Bowen, by registering, “thus, agreed to YouTube’s TOU.” Second, aside from citations to Carnival Cruise and Register.com, the court assumes that the forum selection clause is not unconscionable; the court does not even address, for example, where Bowen is from. (Perhaps this is because “Bowen has made no allegations that would tend to invalidate the forum selection clause.”) Finally, the court assumes that YouTube is a passive website when it concludes that there is not the “something more” necessary to find personal jurisdiction. (Again, however, this is probably because “no conduct has been alleged” to show the “something more.”)