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YouTube and Specific Performance in California (Part II)
With respect to business contracts in California, if there is a breach of contract, sometimes the remedy of “specific performance” is available. Cal. Civ. Code, § 3384 provides that “[e]xcept as otherwise provided in this Article, the specific performance of an obligation may be compelled.”
As we discussed in a previous article, the key criterion for specific performance is the uniqueness of the subject of the contract (like land or property) or the inadequacy of a remedy at law (money damages not sufficient to give the non-breaching party its benefit of the bargain). In theory, specific performance is also available with respect to consumer contract/licenses (such as those browsewrap or clickwrap agreements for YouTube, Twitter, Google, etc.). In this article (part II), we examine specific performance in relation to consumer contracts.
San Diego Specific Performance: Legal Principles
In general, specific performance of a contract can be ordered by a Court of Equity whenever
- Contract terms are sufficiently definite
- Contract consideration is adequate
- There is substantial similarity of the requested performance to the contractual terms
- There is mutuality of remedies; and
- Plaintiff’s legal remedy is inadequate.
Terms of Service Agreements: YouTube
An essential legal principle to emphasize is that the courts will ONLY enforce a contract AS WRITTEN. Thus, if a plaintiff seeks specific performance of a San Diego business contract that is at odds with the actual contract, then no specific performance will be ordered.
The case of Lewis v. YouTube, LLC, 244 Cal. App. 4th 118 (Cal. App. 6th Dist. 2015) presents a good example of this. In that case, Ms. Jan Lewis operated a YouTube channel that was taken down by YouTube without notice. Lewis sued and asked for specific performance – that YouTube restore her channel to the condition that it was prior to being taken offline. Lewis claimed that she had no adequate remedy at law because, as she alleged in her complaint:
“the acclaim that her channel received from fellow YouTube users represents a unique article having a special value to Lewis, for which Lewis cannot obtain a duplicate on the open market and there is no criteria by which the fair market value of that acclaim can be measured. As a consequence, Lewis requires a court order restoring her channel to its condition prior to YouTube’s breach.”
As an initial matter, this is a good example of how specific performance might be raised in a case outside of the traditional home/property purchase circumstance. When one party to a contract is required to provide certain services, or engage in certain activities, compelling performance is often the only adequate remedy.
However, in Lewis’ case, the court took a very detailed look at the contract and held that YouTube was not actually bound by its contract to do what Lewis was demanding. The contract at issue was YouTube’s Terms of Service Agreement (“TOS”). Lewis asked for specific performance — that is, restoring her channel to the YouTube platform. It is highly likely that such would have been ordered if Lewis proved breach of YouTube’s TOS. However, after Lewis filed suit, YouTube restored Lewis’ channel. As such, specific performance in that respect was accomplished.
However, Lewis wanted the channel returned to its “condition prior to YouTube’s breach.” In particular, Lewis wanted view counts and viewer comments restored. Both the trial court and the Court of Appeals held that Lewis could not have THAT specific performance. The court evaluated the issues based on what the TOS required of YouTube. From that perspective, no specific performance could be granted. As the court stated
“[t]here is also no provision in the Terms of Service pursuant to which YouTube is obligated to display view counts or comments associated with videos. There is nothing in the Terms of Service even suggesting that YouTube is a storage site for users’ content. Since Lewis has failed to identify any provision of the Terms of Service that she seeks to have a court enforce, the remedy of specific performance is unavailable.”
San Diego Specific Performance: Legal Lessons
As discussed above, California courts will only specifically enforce what is stated in the contract. So, in relation to YouTube, nothing in their TOS obligates them to retain anything other than was the user has uploaded in terms of their videos. The remainder is beyond what YouTube agreed to in its TOS.
Contact San Diego Corporation Law Today
If you would like more information about specific performance clauses and how courts read San Diego business contracts, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard can review and analyze your contract to determine if you might be subject to a lawsuit for specific performance. For three years in a row, 2015, 2016, and 2017, Mr. Leonard has been named a “Rising Star” by SuperLawyers.com. Mr. Leonard has the experience and knowledge to help your business succeed. Mr. Leonard can be reached at (858) 483-9200 or via email.
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