[00:00:02] Speaker 01:
All right, we're back.

[00:00:03] Speaker 01:
The last matter on calendar is Mercola.com versus Google, and it's 23-2608.

[00:00:12] Speaker 01:
Each side has 20 minutes.

[00:00:21] Speaker 05:
Good morning, Your Honors.

[00:00:21] Speaker 01:
Good morning.

[00:00:22] Speaker 05:
May it please the court, John Kreutz for Appellants Mercola.

[00:00:26] Speaker 05:
I'd like to reserve a couple minutes for rebuttal in advance.

[00:00:29] Speaker 05:
So Your Honors, this is a contract case.

[00:00:32] Speaker 05:
And ultimately, the crux of our claims comes down to how the lower court interpreted a handful of contractual provisions in the TOS that applies to YouTube and Mercola.

[00:00:42] Speaker 05:
This adds a bit of an unusual aspect to a social media case, which is that we would be making exactly the same arguments.

[00:00:50] Speaker 05:
if this were a case about widgets, because this really does come down to how we read 35 lines of a contract.

[00:00:58] Speaker 05:
And ultimately, the foundation of our argument, upon which essentially everything is based, is going to come down to this modifying the agreement provision in YouTube's TOS.

[00:01:08] Speaker 01:
So do you agree with the district court's assertion that your client has narrowed its request and is not challenging YouTube's right to deny

[00:01:19] Speaker 01:
at a platform, but it's only seeking access to its content?

[00:01:24] Speaker 05:
I don't agree, Your Honor, and the reason is I don't think we've narrowed our request.

[00:01:28] Speaker 05:
I think our request has always been angled at getting access to the data, which is to effectuate the ultimate goal of the modifying this agreement provision.

[00:01:37] Speaker 05:
I think we have referred to that in a number of different ways, and I know that the lower court mentioned that they saw that we had changed that.

[00:01:45] Speaker 05:
But respectfully, Your Honor, I don't think we have.

[00:01:47] Speaker 05:
I think we've been pretty focused on... But you're not seeking to keep the content up or the channel open?

[00:01:53] Speaker 05:
Not at all, Your Honor.

[00:01:54] Speaker 05:
In fact, that is what distinguishes our case from the Google case that just passed in front of you, is we are seeking to have a contractual provision enforced.

[00:02:04] Speaker 05:
And this is the provision.

[00:02:06] Speaker 05:
YouTube will provide reasonable advance notice of any material modification to this agreement.

[00:02:13] Speaker 05:
and the opportunity to review them, except that modifications addressing newly available features to the service or modifications made for legal reasons may be effective immediately without notice.

[00:02:23] Speaker 05:
If you do not agree to the modified terms, you should remove any content you have uploaded and discontinue your service.

[00:02:32] Speaker 01:
Your client is not asserting any cause of action that does not depend on the reading of the modification clause, so that's where we center ourselves.

[00:02:41] Speaker 05:
I believe that's correct, Your Honor.

[00:02:42] Speaker 05:
That is crucial to essentially every claim that we have made.

[00:02:47] Speaker 05:
starting, of course, with our express breach claim.

[00:02:50] Speaker 03:
But, of course, we have to construe that modification claim in the context of the contract as a whole and the other provisions.

[00:02:57] Speaker 03:
Absolutely.

[00:02:57] Speaker 03:
So, let me start you off with this.

[00:03:00] Speaker 03:
The briefs discuss how there are other preservisions of the contract that give Google leave to take down content.

[00:03:09] Speaker 03:
in its discretion, and especially when there's concerns for safety or other reasons.

[00:03:17] Speaker 03:
Why shouldn't that be the driving force behind looking at this case as opposed to the notion of a modification?

[00:03:27] Speaker 05:
I think Your Honor is right that that is the driving force of this case, and our argument is, respectively, that the lower court got the harmonizing of this contract wrong.

[00:03:35] Speaker 05:
Those provisions are in the agreement.

[00:03:37] Speaker 05:
provisions that state very clearly, YouTube doesn't have an obligation to host, doesn't have an obligation to post, has discretion to remove people.

[00:03:45] Speaker 05:
But it also has this modifying this agreement provision.

[00:03:48] Speaker 05:
And the obligation in reading a contract, of course, is that we have to harmonize these provisions together.

[00:03:53] Speaker 05:
And the problem with the lower courts reasoning is that they didn't do so.

[00:03:56] Speaker 05:
By prioritizing those general disclaimers of reservation that YouTube made,

[00:04:01] Speaker 05:
They rendered the modifying this agreement provision essentially meaningless, which is an error.

[00:04:08] Speaker 05:
They put the general over the specific.

[00:04:11] Speaker 05:
Now they should have modified the more general provisions using the more specific firm language of the modifying this agreement provision.

[00:04:18] Speaker 05:
because it is firm contractual language.

[00:04:21] Speaker 05:
I mean we look to the ordinary sense of these words and we know what the ordinary sense of words like will, any, accept, unless are.

[00:04:30] Speaker 05:
The construction of this provision is it's an if, then, unless provision with no qualifications to it whatsoever.

[00:04:36] Speaker 03:
You would agree if this didn't involve a modification of a policy

[00:04:41] Speaker 03:
Google wouldn't have to give any advance notice before it takes down content.

[00:04:46] Speaker 03:
Would you agree with that?

[00:04:48] Speaker 03:
I think the answer to that is complicated.

[00:04:51] Speaker 05:
In our case, I don't think that would apply.

[00:04:53] Speaker 05:
Oh, it's got a lot of leeway to take down that content, right?

[00:04:57] Speaker 05:
Yes, yes.

[00:04:57] Speaker 05:
I apologize if you're maybe on the same page.

[00:04:59] Speaker 05:
No, no, no, go ahead.

[00:05:01] Speaker 05:
Yes, YouTube, and there's no denying that.

[00:05:03] Speaker 05:
We're not challenging that.

[00:05:04] Speaker 05:
YouTube has a lot of leeway to decide what is on its platform.

[00:05:07] Speaker 03:
So again, let me be more specific.

[00:05:10] Speaker 03:
I found the part that I think it matters.

[00:05:12] Speaker 03:
The agreement says it may do so to take down this content without notice if content would cause harm to any user.

[00:05:20] Speaker 03:
Or to a third party.

[00:05:21] Speaker 03:
So if Google and its discretion deems content to be harmful to a user, it doesn't have to give any kind of reasonable notice in advance before it takes it down.

[00:05:32] Speaker 05:
Unless it triggers this modifying this agreement provision.

[00:05:35] Speaker 05:
I think you're right, your honor, but this modifying this agreement provision materially changes that situation.

[00:05:40] Speaker 05:
Because YouTube has those reservations of discretion, and had they rested on those, the situation would more resemble the hypothetical.

[00:05:47] Speaker 05:
But they didn't.

[00:05:48] Speaker 05:
They put firm contractual language in here, making a series of if-then-unless promises.

[00:05:54] Speaker 05:
And this is firm language, Your Honor.

[00:05:56] Speaker 05:
I mean, there are really only a handful of cases that are genuinely relevant to interpreting this contract, because the contract is very different from other

[00:06:03] Speaker 05:
other cases addressing these, but you can see the difference between firm and infirm language and the difference between the Neeraj case and the Daniels case.

[00:06:11] Speaker 05:
In the Neeraj case, it's unqualified, reasonable advance notice.

[00:06:15] Speaker 05:
The court there said that it suspected that that would require a reasonable advance notice.

[00:06:18] Speaker 05:
You can contrast that with Daniels, where the provision said that they would give a notice for the reason of removal, but then it qualified that to high heaven with, if we think it's reasonable, if we have a reasonable suspicion that it would be harmful to notify you, then we don't have to do that.

[00:06:33] Speaker 05:
Those kind of provisions don't have force.

[00:06:36] Speaker 05:
But a provision like this, a provision that says, if then except with no qualifications, that has to have force.

[00:06:43] Speaker 05:
Because if it doesn't, it gets written out of the contract.

[00:06:46] Speaker 05:
And that's exactly what happened below with the lower court.

[00:06:48] Speaker 05:
It put the general reservations of discretion over the more specific one.

[00:06:52] Speaker 05:
It had ultimately read it out of the contract.

[00:06:55] Speaker 04:
What about the community guidelines provision?

[00:06:57] Speaker 05:
Was that modified?

[00:06:58] Speaker 05:
The Community Guidelines provision?

[00:07:00] Speaker 05:
Correct.

[00:07:00] Speaker 05:
I believe that's where the modification was, Your Honor.

[00:07:03] Speaker 04:
Well, it was a modification within that provision, correct?

[00:07:08] Speaker 04:
Meaning how it applied.

[00:07:11] Speaker 05:
Yes, I believe that's right, Your Honor.

[00:07:12] Speaker 05:
Is Your Honor's question whether it's a new modification or?

[00:07:16] Speaker 04:
My question is whether that's a modification of that provision as opposed to a modification of how the provision may be applied in Google's judgment.

[00:07:25] Speaker 05:
Your Honor, it is absolutely a modification of that provision.

[00:07:28] Speaker 05:
I think that is crystal clear.

[00:07:30] Speaker 05:
Our allegations in the complaint include specifically the Washington Post article where YouTube says, this is a new policy, where they explain they needed a new policy, where they explain to develop that policy required them to consult with outside experts.

[00:07:44] Speaker 05:
We have YouTube's own actions where clearly they didn't think that they could remove Mercola safely without adding a new policy because they did so.

[00:07:50] Speaker 05:
We have YouTube's comments on the news and events page.

[00:07:53] Speaker 05:
Again, Your Honor,

[00:07:54] Speaker 05:
YouTube has been.

[00:07:55] Speaker 05:
very clear in their own words that this is new, that this is something that they made a change of.

[00:08:00] Speaker 05:
And Your Honor, I think it is clear, given the significance of the change, that it is a material change that would trigger this provision.

[00:08:09] Speaker 03:
But I guess what I'm a little resistant to is the notion that the contract should be read in a way where Google has given up its discretion to take down harmful content immediately without notice if it needs to.

[00:08:23] Speaker 03:
So let me pose a question for you.

[00:08:25] Speaker 03:
What if Google had modified its policy to create a particular ban on videos that involve the creation of explosive devices?

[00:08:36] Speaker 03:
So now you have content that's dangerous and you have a modification of policy.

[00:08:42] Speaker 03:
And if a video came up, are you saying that Google could not, in its discretion, take down that video right away because it happened to be a modification of a policy?

[00:08:52] Speaker 03:
It's given up its ability to take down harmful content immediately?

[00:08:56] Speaker 05:
I don't think it has entirely given up its ability to take down harmful content.

[00:09:00] Speaker 05:
Frankly, that represents an extreme edge case that is already covered by Google's community guidelines, which distinguishes it from this situation.

[00:09:08] Speaker 05:
Google's community guidelines absolutely already cover the kind of, like, terroristic content, like, direct threats of violence.

[00:09:15] Speaker 03:
No, but I'm putting you to the test with a specific example of the...

[00:09:20] Speaker 03:
Google modifies to say you cannot have a video that involves the creation of an improvised explosive device.

[00:09:27] Speaker 03:
And so it's a furtherance of whatever community guideline policy it had.

[00:09:32] Speaker 03:
Now Google, because it's done that, it loses the ability to immediately take down that content unless it's given some reasonable notice to the people.

[00:09:45] Speaker 05:
Again, I think that is a difficult hypothetical, but I think that

[00:09:49] Speaker 05:
I think the answer is a qualified they could be limiting themselves.

[00:09:53] Speaker 05:
But I think the reality is that that situation would not arise.

[00:09:57] Speaker 05:
But the problem by writing a very specific term like this is that they might limit themselves in that way.

[00:10:03] Speaker 05:
I'm not sure that I can give you a yes or no on that, Your Honor, because I suspect it is already covered.

[00:10:08] Speaker 05:
And I do think that those kind of modifications

[00:10:11] Speaker 05:
depending on what they were and whether they were really material modifications, YouTube might be binding itself in unwise ways.

[00:10:18] Speaker 03:
Let me ask you this.

[00:10:19] Speaker 03:
What about the last clause of that modification paragraph that talks about a modification made for legal reasons may be effective immediately without notice?

[00:10:28] Speaker 03:
Why couldn't this be construed as a modification made for legal reasons?

[00:10:34] Speaker 05:
because YouTube made it for its own internal decisions.

[00:10:37] Speaker 05:
In fact, Google, I believe in the Kennedy case, just took exactly that position, generally speaking, on its content policies.

[00:10:42] Speaker 05:
It makes its content policies based on its own internal decisions.

[00:10:45] Speaker 05:
It was neither ordered by a court to do anything, it didn't say in any of its materials that it was making these changes because it feared liability, which it shouldn't because of Section 230.

[00:10:55] Speaker 05:
It focused entirely on YouTube's own desires, own speech, which is completely

[00:11:00] Speaker 05:
completely consistent with Google's position in all of these free speech cases, that it is making its own decisions here.

[00:11:06] Speaker 05:
I don't think that exception there applies at all.

[00:11:08] Speaker 05:
I think this provision applies with force, and I think the problem with the express breach argument is that, with the express breach decision below, is that the court below emphasized the general over the specific, but I also think, Your Honor, that the court below erred in finding that our implied covenant claim was duplicative of our breach claim.

[00:11:27] Speaker 05:
I think that's very important.

[00:11:29] Speaker 01:
Did you raise the possibility of asserting a claim of unconscionability with the district court?

[00:11:36] Speaker 05:
No, Your Honor.

[00:11:36] Speaker 01:
No, we did not.

[00:11:37] Speaker 01:
Is that out here?

[00:11:38] Speaker 05:
It is out here.

[00:11:39] Speaker 01:
We are making the argument, and we did ask for amendment below, but- But I'm saying, I'm not saying is it here.

[00:11:47] Speaker 01:
I'm saying are you out of luck because you didn't raise it in the district court?

[00:11:51] Speaker 05:
Our argument would be in the interest of justice.

[00:11:54] Speaker 05:
So that is a tough position.

[00:11:56] Speaker 05:
In that sense, it's more difficult than if we've raised it below.

[00:11:59] Speaker 05:
I don't think we're completely out of luck.

[00:12:01] Speaker 05:
I'm happy to turn to amendment quickly if you would like.

[00:12:05] Speaker 01:
I just want to make sure whether you'd raised it below or not.

[00:12:08] Speaker 01:
Absolutely, Your Honor.

[00:12:09] Speaker 05:
We did not make that specific argument below, and our arguments on that in the brief were essentially in the interest of justice.

[00:12:14] Speaker 05:
But when it comes to the implied covenant, what the court below said was that it was duplicative of our express breach claim.

[00:12:21] Speaker 05:
And those claims can be duplicative, but they aren't always.

[00:12:25] Speaker 05:
And the question, this is goose, the question is whether or not it is exactly the same conduct that's being complained of, and it wasn't here, Your Honors.

[00:12:33] Speaker 05:
The conduct of the express breach that we're complaining of is merely the failure to notify.

[00:12:38] Speaker 05:
The conduct for the implied covenant breach is everything that YouTube did around that.

[00:12:43] Speaker 05:
We make a number of allegations to the point where there is smoke here.

[00:12:49] Speaker 05:
We have YouTube's comments to the Washington Post saying that this was about Mercola specifically.

[00:12:54] Speaker 05:
If you look at the Washington Post article, actually, Your Honors, the first name in the first line is Mercola.

[00:13:01] Speaker 05:
We have the announcement both on the news and events and in the WAPO article to be timed within six minutes of removing Mercola from the platform.

[00:13:11] Speaker 05:
We have the notification of his removal having no explanation of what specifically in his videos he had done wrong.

[00:13:18] Speaker 05:
They promised or they included a link to an appeals process that didn't exist.

[00:13:23] Speaker 05:
Ultimately, Your Honor, those are the bad faith acts that support our implied covenant claim.

[00:13:29] Speaker 01:
Has YouTube been unjustly enriched by its retention of the contents of Mercola's post?

[00:13:34] Speaker 05:
Yes, Your Honor.

[00:13:35] Speaker 05:
Yes, they have.

[00:13:36] Speaker 01:
How so?

[00:13:38] Speaker 05:
Three reasons.

[00:13:39] Speaker 05:
First, YouTube has retained all of the subscriber base from the 50 million views that Mercola and his organization brought to YouTube.

[00:13:46] Speaker 05:
YouTube has retained the ad impressions, and actually I think maybe most importantly, YouTubers retain the videos, which have value.

[00:13:54] Speaker 05:
And moreover, I'd note that YouTube's retention of the videos is in some sense an admission that there is value there.

[00:14:02] Speaker 05:
Otherwise, I cannot understand why they would be keeping them.

[00:14:06] Speaker 05:
But, Your Honors, I think our implied covenant argument, especially the motion to dismiss stage, is very strong.

[00:14:12] Speaker 05:
We've made a number of arguments here pointing to at least what I think are very plausibly bad faith acts by YouTube.

[00:14:19] Speaker 05:
And I think the lower court was wrong to say this was duplicative.

[00:14:22] Speaker 03:
Can I add?

[00:14:22] Speaker 03:
So I take it if Google were targeting Mercola, how is it

[00:14:31] Speaker 03:
You know, and let's just use a term without due process.

[00:14:34] Speaker 03:
How is that a violation of the covenant of good faith between the parties there?

[00:14:40] Speaker 05:
I think it comes back to the way that the covenant is... Essentially it is...

[00:14:47] Speaker 05:
These are these are classic violations of the covenant in the restatement.

[00:14:52] Speaker 05:
It is abuse of power to specify terms.

[00:14:56] Speaker 05:
It is attempts to frustrate the legitimate expectations of the other party.

[00:15:00] Speaker 05:
It is attempts to interfere with the other party's performance.

[00:15:03] Speaker 05:
Those are all straight from their statement.

[00:15:04] Speaker 05:
I think the allegations here.

[00:15:06] Speaker 05:
Certainly at the plausibility standard meet that and I think that does touch on the intersection to of the discretion to remove and the notice promise that they made.

[00:15:16] Speaker 05:
That is another situation where they're abusing their ability to potentially specify terms.

[00:15:21] Speaker 05:
So yes, your honor.

[00:15:21] Speaker 05:
I do think that activity.

[00:15:23] Speaker 03:
So Google does not have the right to unfairly single out Mercola for action to take down the videos under the terms of the user agreement?

[00:15:35] Speaker 03:
I wouldn't go that far, Your Honor.

[00:15:36] Speaker 05:
I absolutely wouldn't go that far.

[00:15:37] Speaker 05:
I think this is far more fact bound than that.

[00:15:41] Speaker 05:
I think the reason that this claim works here is the very specific actions YouTube took that seem to me plainly aimed at ensuring that Mercola

[00:15:50] Speaker 05:
could not get the notice that they said they wanted to provide.

[00:15:54] Speaker 05:
The six-minute gap between announcing the policy and getting rid of him was obviously planned.

[00:15:59] Speaker 05:
I think that's the only reasonable implication from that.

[00:16:02] Speaker 05:
And those are the kind of acts.

[00:16:03] Speaker 05:
I don't think that we would be making a claim any more general than that about targeting Merkel.

[00:16:11] Speaker 05:
I think it's not just the targeting.

[00:16:12] Speaker 05:
It's the specific, specific acts that indicate that faith.

[00:16:16] Speaker 03:
Do you claim that Mercola lost the videos themselves insofar as they were uploaded, but he didn't keep a copy of them?

[00:16:24] Speaker 03:
Is that part of the unjust enrichment claim as well?

[00:16:27] Speaker 05:
Yes, it is, Your Honor, and that goes to our relief as well.

[00:16:31] Speaker 05:
Mercola has lost

[00:16:33] Speaker 05:
most of these videos, he's lost all of his subscriber and user information.

[00:16:37] Speaker 03:
This is an ignorant question since I've never uploaded to YouTube, but why would he not have kept copies of the videos that he was planning to upload to the platform?

[00:16:46] Speaker 05:
I do not know the answer to that, Your Honor.

[00:16:47] Speaker 05:
I'm sorry, that's not on the record as far as I know.

[00:16:50] Speaker 05:
All I know is that the allegations that we've made in my personal understanding is that the vast majority of those videos have been lost.

[00:16:58] Speaker 05:
And that actually gets to remedy real quick.

[00:17:02] Speaker 05:
because we are asking for specific performance.

[00:17:04] Speaker 05:
And the specific performance that we're asking here is to bring into effect the third line of that modifying this agreement provision, because that's what we're supposed to be doing, as I understand it.

[00:17:15] Speaker 05:
We are attempting to find the intent of the provision.

[00:17:19] Speaker 05:
We're trying to bring it into effect to the extent that we can.

[00:17:22] Speaker 05:
And the third line of the modifying this agreement provision says that once you have the notice,

[00:17:28] Speaker 05:
If you cannot or will not agree to that, you're supposed to take your content off.

[00:17:32] Speaker 05:
And that's the relief that we are trying to get at.

[00:17:35] Speaker 05:
I think that is why our discussions of the relief have used different language, but ultimately that is the underlying desire.

[00:17:43] Speaker 05:
and there are a number of potential ways that could be achieved.

[00:17:45] Speaker 05:
That is ultimately a fact question, but the ability to see what the goal was, what the performance that should have been rendered was, I think is there.

[00:17:55] Speaker 05:
And more specific than that I think would be a fact question, Your Honor.

[00:18:00] Speaker 05:
I see that I'm 30 seconds from the time I'll have to stop.

[00:18:03] Speaker 01:
Would you like to reserve your time?

[00:18:05] Speaker 05:
Yes, I'd like to reserve whatever remaining time I have.

[00:18:07] Speaker 01:
Okay, thank you.

[00:18:08] Speaker 05:
Thank you so much, Your Honor.

[00:18:23] Speaker 01:
Good morning.

[00:18:25] Speaker 00:
May it please the court.

[00:18:26] Speaker 00:
Ari Holtzblatt for Google.

[00:18:28] Speaker 00:
The district court correctly dismissed all claims with prejudice.

[00:18:33] Speaker 00:
And I'd like to start where, Judge Sanchez, you were going, which is that Mercola's core claim here is the agreement required YouTube to continue hosting and serving his videos for some period of time after announcing the vaccine misinformation policy.

[00:18:47] Speaker 00:
Now it's important in announcing the policy, YouTube explained that it believed

[00:18:52] Speaker 00:
vaccine misinformation, I'm quoting from ER 155, poses a serious risk of egregious harm.

[00:19:00] Speaker 00:
And it told Mercola it had suspended his channel to quote, and this is from ER 181, the complaint itself, to protect other users on the platform.

[00:19:09] Speaker 00:
So to prevail, we have exactly what my friend called an edge case.

[00:19:13] Speaker 00:
Mercola must show that the agreement obligated YouTube to continue hosting and serving what it believed was harmful content,

[00:19:21] Speaker 00:
despite believing that that type of content risked egregious harm.

[00:19:25] Speaker 00:
That is not what the agreement says.

[00:19:27] Speaker 00:
The agreement is clear that YouTube may remove any content it, quote, reasonably believes may cause harm to our users or third parties, and that YouTube is under no obligation to host or serve content.

[00:19:42] Speaker 00:
The agreement's liability bar as well, which we didn't discuss before, but it's relevant here, also precludes any damages like this one for loss of data

[00:19:50] Speaker 00:
caused by removal of content.

[00:19:52] Speaker 00:
And Mercola's reading would override these provisions by saying that YouTube is obligated to continue hosting and serving content, and that it may not remove harmful content for some undetermined period of time.

[00:20:06] Speaker 03:
But they're arguing now that they don't want the content up on the platform anymore.

[00:20:11] Speaker 03:
They just want the videos back.

[00:20:12] Speaker 03:
So why not give them the videos back?

[00:20:15] Speaker 00:
Two answers, Your Honor.

[00:20:17] Speaker 00:
The first is that as a matter of contract construction, they need to argue that there was a period of time when YouTube was obligated for that period of time to leave up their videos.

[00:20:27] Speaker 00:
And that argument about how to read the agreement conflicts with the plain language of the agreement.

[00:20:32] Speaker 00:
But I understand, Your Honor, to be asking, well, don't they have a right to retrieve their videos?

[00:20:36] Speaker 00:
What if they could get their videos back?

[00:20:38] Speaker 00:
And that's a different, I think a different argument, actually, about what the agreement obligates.

[00:20:43] Speaker 00:
And that, too,

[00:20:44] Speaker 00:
is refuted by the specific provisions of the contract.

[00:20:49] Speaker 00:
The provisions that I just mentioned are the ones that specifically address YouTube's content removal authority.

[00:20:55] Speaker 00:
And again, they say that, quote, YouTube is under no obligation to host or serve content.

[00:21:00] Speaker 00:
Those two different words, host or serve.

[00:21:03] Speaker 00:
And what does host mean?

[00:21:05] Speaker 00:
Host means to store the content.

[00:21:07] Speaker 00:
What they are saying is that YouTube had an obligation to store the content so that they could now

[00:21:13] Speaker 00:
retrieve it, and the right of retrieval they're seeking conflicts with that language.

[00:21:17] Speaker 00:
And in fact, the California Court of Appeal, in a very similar case, the Lewis case, addressed this exact question.

[00:21:23] Speaker 00:
And what it said, and I'm quoting, is nothing in the term suggests YouTube is a storage site for users' content.

[00:21:31] Speaker 00:
Now, there are other provisions of the agreement which speak to removing videos when possible.

[00:21:36] Speaker 00:
And they use critically different language than the language that my friend was pointing to.

[00:21:41] Speaker 00:
That's for service changes.

[00:21:42] Speaker 00:
And what they say is, where reasonably possible, you will be provided with sufficient time to export your content from the service.

[00:21:51] Speaker 00:
That's at ER 144.

[00:21:53] Speaker 00:
But Mercola does not claim that there were service changes here.

[00:21:56] Speaker 00:
And the sentence he points to when he quoted from the last sentence of the modification provision actually contains different language.

[00:22:03] Speaker 00:
It doesn't use the phrase sufficient time to export your content.

[00:22:07] Speaker 00:
This is a contract case.

[00:22:10] Speaker 00:
We have to give effect to the meaningful difference in language that's used.

[00:22:14] Speaker 00:
Now, the core argument that my friend makes is he points to the modification clause.

[00:22:19] Speaker 00:
And he says that this would nullify the modification clause, notwithstanding the unequivocal language.

[00:22:27] Speaker 00:
But unlike the provisions that specifically address YouTube's content removal authority, this modification provision

[00:22:34] Speaker 00:
says nothing about YouTube's obligation to continue hosting or serving content.

[00:22:39] Speaker 00:
So I actually think the specific provision that is implicated in a case like this is the provision that says you're not obligated to host or serve the content.

[00:22:48] Speaker 00:
You have discretion to remove that content.

[00:22:50] Speaker 00:
And I think your honor's example is an excellent one, Judge Sanchez, that YouTube expressly says, we have the authority to remove harmful content.

[00:23:01] Speaker 00:
And we can do it immediately.

[00:23:03] Speaker 00:
even while simultaneously updating our guidelines to inform everyone that this is the kind of content that we believe can't stay up on the platform.

[00:23:13] Speaker 00:
And it's critically important if YouTube is operating a free platform for hundreds of millions of users, that it be able to retain that kind of discretion.

[00:23:24] Speaker 01:
So what would be the harm in requiring YouTube to give advance notice that it was removing content or terminating an account?

[00:23:31] Speaker 00:
Precisely that, Your Honor, it would require YouTube to leave up what it has deemed to be harmful content.

[00:23:36] Speaker 00:
So let me give Your Honor another example.

[00:23:38] Speaker 00:
It's not the explosive example.

[00:23:39] Speaker 00:
It's the one I thought of.

[00:23:40] Speaker 00:
We all, I think, remember back when the Tide Pod challenges were moving around the internet.

[00:23:46] Speaker 00:
Imagine suddenly people are starting to post challenges saying, swallow these, encouraging people to swallow or challenging them to swallow these Tide Pods.

[00:23:57] Speaker 00:
And YouTube may look at that and say, well, wow,

[00:24:00] Speaker 00:
That might encourage people to do that.

[00:24:05] Speaker 00:
We want to make sure that can be taken down.

[00:24:06] Speaker 00:
We're going to take it down immediately.

[00:24:08] Speaker 00:
And at the same time, we're going to let everyone know that you can't have this content up there.

[00:24:12] Speaker 00:
And the way we're going to do it is we're going to update our community guidelines.

[00:24:16] Speaker 00:
Under my friend's reading of the contract, they can't do that.

[00:24:19] Speaker 00:
If they're going to update the community guidelines, they have to leave up.

[00:24:23] Speaker 00:
all of these videos challenging people to swallow Tide Pods.

[00:24:27] Speaker 00:
And that's a scary situation.

[00:24:29] Speaker 00:
And it's not tenable for someone who's operating a platform with this number of users.

[00:24:34] Speaker 00:
And it's not what the agreement says.

[00:24:37] Speaker 00:
Now, my friend also wanted to talk about the implied covenant.

[00:24:42] Speaker 00:
And so I want to make sure that I address his arguments there.

[00:24:46] Speaker 00:
First, and I think it's important to mention this, the limitation of the liability bar provision.

[00:24:52] Speaker 01:
I had a question.

[00:24:53] Speaker 01:
Hypothetically, if we determine YouTube improperly retain the content of Mercola's post, does the agreement's limitation on liability section bar monetary relief?

[00:25:06] Speaker 01:
Does it bar injunctive relief?

[00:25:10] Speaker 00:
It certainly bars monetary relief, and it speaks specifically to

[00:25:14] Speaker 00:
that, and I don't believe it bars injunctive relief.

[00:25:17] Speaker 00:
So I can take each of them in order.

[00:25:19] Speaker 00:
So with respect to monetary relief, it specifically refers to loss of data.

[00:25:24] Speaker 00:
YouTube will not be responsible for loss or corruption of data caused by any interruption or cessation of service or the removal or unavailability of any content.

[00:25:33] Speaker 00:
That language speaks precisely to what we have here and I think definitely forecloses monetary relief.

[00:25:39] Speaker 00:
The question then is, what about specific performance?

[00:25:42] Speaker 00:
Now, specific performance

[00:25:44] Speaker 00:
as your honors all know, is a limited remedy.

[00:25:47] Speaker 00:
It's not available in a contract action.

[00:25:50] Speaker 00:
There's always circumstances where you might have a damages claim unless there's a liability bar, but there's a much narrower category of cases when you can have specific performance.

[00:26:01] Speaker 00:
And the test for that is there has to be a substantial similarity

[00:26:05] Speaker 00:
between the requested performance to the contractual terms.

[00:26:09] Speaker 00:
Classic would be, I've sold you this house and now I'm telling you, you gotta be ordered to give me the house if you refuse to turn over the house.

[00:26:17] Speaker 00:
And so we have to look to the contract to see, is there a provision that is substantially similar to the requested performance?

[00:26:24] Speaker 00:
If the requested performance here is in order to order YouTube to give back the videos, then we look to see, is there any provision of the,

[00:26:35] Speaker 00:
of the terms that require it to do that.

[00:26:38] Speaker 00:
And I've already cited the Lewis case, which says that YouTube is not a storage service for content.

[00:26:45] Speaker 00:
And in the language of the terms of service, which talks about not hosting, having no obligation to host content, all of those indicate that that's not

[00:26:52] Speaker 00:
required, and there's a practical issue here.

[00:26:55] Speaker 03:
What about pointing to the term of the contract that talks about, is it for service modifications, giving someone notice of the change to give them a chance to offload the content from the platform?

[00:27:07] Speaker 03:
Why couldn't specific performance be analogized to that provision, for example?

[00:27:14] Speaker 00:
That provision would have to be implicated for it to be analogized to it, and it isn't, because Dr. Mercola has not

[00:27:21] Speaker 00:
alleged a violation of that provision.

[00:27:23] Speaker 00:
So if he had alleged a violation of the provision, then we would be arguing about whether this was a service change.

[00:27:28] Speaker 00:
I think there's no question that it's not a service change, and so that's why he hasn't alleged a violation of that provision.

[00:27:33] Speaker 00:
But in order to trigger that, he would need to have alleged a breach of that provision.

[00:27:38] Speaker 00:
There can't be a substantial similarity between that provision and the claim here if a

[00:27:44] Speaker 00:
if a condition predicate to that provision is that there be a service change and there isn't a service change in this case.

[00:27:51] Speaker 00:
And there's a practical reason for this.

[00:27:53] Speaker 00:
YouTube is operating a platform for hundreds of millions of users.

[00:27:57] Speaker 00:
It's a free service.

[00:27:58] Speaker 00:
And it cannot be in the position of designing bespoke relief every time someone gets upset when it changes, when it enforces its content moderation rules.

[00:28:07] Speaker 00:
It would be impossible to operate that platform.

[00:28:09] Speaker 00:
And so we've obviously this case is coming to the court as a single case that is

[00:28:13] Speaker 00:
where Dr. Mercola is raising his concerns about his videos.

[00:28:17] Speaker 00:
But we have to think about the implications of a rule like this and how it would hamper YouTube's ability to carry out the very important task for which it's retained discretion within the plain language of the terms of service.

[00:28:33] Speaker 00:
If the court has no further questions on remedy, I can talk about implied covenant very briefly.

[00:28:41] Speaker 00:
So Dr. Mercola has raised the implied covenant claim.

[00:28:44] Speaker 00:
There's a limitation of liability question.

[00:28:46] Speaker 00:
I think there's no question the limitation of liability provision also bars this claim.

[00:28:51] Speaker 00:
The plain language of that provision says that, quote, any claim based on any legal theory is covered.

[00:28:56] Speaker 00:
That's at ER 188.

[00:28:57] Speaker 00:
This court, although it was an unpublished decision, but in the Darna case, applied very similar limitation bar, liability bar, to an implied covenant claim, and as did the Lewis Court in the California Court of Appeal,

[00:29:11] Speaker 00:
But the other problem, and this goes to the specific performance that Dr. Mercola is seeking, is that an implied covenant is only available where it prevents one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made.

[00:29:29] Speaker 00:
In the Gutz case, which my friend cited is instructive here, the California Supreme Court explained that an implied covenant claim is a very narrow type of claim.

[00:29:40] Speaker 00:
It's only available to protect, to prevent frustration of benefits actually promised within the terms of service.

[00:29:46] Speaker 00:
And so I think it collapses with the merits question here.

[00:29:49] Speaker 00:
If Dr. Mercola was not entitled to the benefit that he claims under the terms of service, then he also can't have the benefit of the implied covenant.

[00:30:02] Speaker 00:
And on this, Gutz is very instructive, it explains that

[00:30:06] Speaker 00:
implied covenant claims are almost always going to be either duplicative of a contract claim or they are going to be invalid because they attempt to modify the contract.

[00:30:16] Speaker 00:
Now, my friend also, there was discussion of unjust enrichment, and so I'd like to briefly address that.

[00:30:21] Speaker 00:
The district court correctly dismissed the unjust enrichment claim because an unjust enrichment claim cannot live side by side with a breach of contract claim except in a narrow circumstance where the plaintiff pleads in the alternative

[00:30:35] Speaker 00:
that there is an invalid or unenforceable contract or that it was procured by fraud.

[00:30:43] Speaker 00:
And we don't have that here.

[00:30:44] Speaker 00:
In fact, quite the opposite.

[00:30:46] Speaker 00:
At paragraph 94 of the amended complaint, Dr. Mercola alleges that the contract is valid.

[00:30:52] Speaker 00:
And at no point does he plead in the alternative.

[00:30:55] Speaker 00:
And in paragraph 97, he says the contract is free from fraud.

[00:30:58] Speaker 00:
And so that alone should take care of the unjust enrichment claim.

[00:31:02] Speaker 00:
But even if it did not,

[00:31:03] Speaker 00:
There's no sense in which YouTube has retained a benefit.

[00:31:06] Speaker 00:
There is nothing beneficial to YouTube about having retained the videos here.

[00:31:13] Speaker 00:
It's taken them down.

[00:31:13] Speaker 00:
It's not attracting any traffic.

[00:31:16] Speaker 00:
And in fact, that's how he applied his claim at paragraph 106.

[00:31:20] Speaker 00:
And then finally, Your Honors, there was a discussion of unconscionability.

[00:31:23] Speaker 00:
As my friend mentioned, this is an argument that was not raised below, and I think it would be fundamentally unfair

[00:31:30] Speaker 00:
to the district court, where a leave to amend is an abusive discretion standard, be fundamentally unfair to district courts to say, well, you can sandbag us on appeal by saying, well, I wanted leave to amend in a single sentence, but I never actually explained the theory that I wanted.

[00:31:44] Speaker 00:
So if the court has no further questions about any of those or anything else, I'm happy to sit down.

[00:31:49] Speaker 03:
I do have one about the except for legal reasons clause of the modification.

[00:31:56] Speaker 03:
Do you agree that this modification would not have been made for legal reasons?

[00:32:01] Speaker 03:
Is that something that's been established here at all?

[00:32:03] Speaker 00:
It's not what we've argued.

[00:32:05] Speaker 00:
OK.

[00:32:07] Speaker 00:
Thank you.

[00:32:08] Speaker 00:
Thank you very much.

[00:32:09] Speaker 01:
Thank you.

[00:32:19] Speaker 05:
Hello again, your honors, just briefly on specific performance.

[00:32:23] Speaker 05:
I do not see a lot of daylight between the phrase being used in the modification of service provision.

[00:32:30] Speaker 05:
The phrase is being used in the modification of this agreement provision, the modification of this agreement provision says reasonable advanced notice.

[00:32:38] Speaker 05:
During that time, if you don't agree, you're supposed to take your content off.

[00:32:42] Speaker 05:
I think you can put those together, especially for the purposes of trying to identify what the goal, what the intention of this provision was, to determine that that period was a reasonable period in which to remove that content.

[00:32:54] Speaker 05:
So I don't think the comparison to the service provision is apposite here.

[00:32:59] Speaker 05:
I would also note, Your Honors, that YouTube has a mechanism to accomplish exactly this.

[00:33:06] Speaker 05:
They have a link you can click out of their TOS to take you to a place to remove all of your content.

[00:33:13] Speaker 05:
So to the extent that we're discussing whether or not it's possible to craft a remedy, there's something out there already.

[00:33:19] Speaker 05:
I'd like to move to the limitation of liability issue real quick.

[00:33:23] Speaker 05:
I see I only have a minute and 20, but the limitation on liability agreement, I believe the lower court misread because it collapsed a two-part test into one statement.

[00:33:34] Speaker 05:
Because this is an unusual and articulated limitation on liability agreement.

[00:33:39] Speaker 05:
It does not resemble the one in Lewis.

[00:33:41] Speaker 05:
The one in Lewis is very straightforward.

[00:33:43] Speaker 05:
This one, however, in its preamulatory clause, lists kinds of harm, including loss or corruption of data, which is the situation that we find ourselves in here.

[00:33:53] Speaker 05:
But it doesn't disclaim liability for all of that.

[00:33:57] Speaker 05:
In fact, it does the opposite.

[00:33:58] Speaker 05:
It only disclaims liability for those kind of harms if they are caused by seven enumerated causes.

[00:34:06] Speaker 05:
And this is very significant.

[00:34:08] Speaker 05:
I mean, this is an express union situation.

[00:34:10] Speaker 05:
By creating a closed list, it necessarily states there must be something outside this list that could apply to those pre-ambulatory harms.

[00:34:20] Speaker 05:
That's the only reason you would create a closed list.

[00:34:22] Speaker 05:
And here, Your Honors, while our harm is loss of data,

[00:34:25] Speaker 05:
The cause is not anything on that list, because the ultimate proximate cause is not that YouTube deleted it, which was always possible, but that YouTube didn't give us warning in advance to remove it.

[00:34:37] Speaker 05:
If we'd had what the contract promised us, which was the opportunity to remove it, then it would have been removed, and nothing YouTube did to the content afterwards could have harmed us.

[00:34:48] Speaker 05:
That's not on that list.

[00:34:49] Speaker 05:
Your Honor, I see that I'm at my time.

[00:34:54] Speaker 01:
We don't have any questions, so you're at time.

[00:34:56] Speaker 01:
Thank you very much.

[00:34:57] Speaker 01:
Thank you, Mr. Price.

[00:34:58] Speaker 01:
Thank you both for your argument in this matter.

[00:35:01] Speaker 01:
This will be submitted, and this court is in recess till tomorrow at 9 a.m.

[00:35:09] Speaker 01:
All rise.