Mishiyev v. Alphabet, Inc.

Background

Erik Mishiyev operated two YouTube channels beginning in 2007 and uploaded original music, disc jockey mixes, and celebrity interviews. The complaint alleged that users viewed his videos more than 110 million times, that more than 250,000 users subscribed to his channels, and that he earned more than $300,000 through YouTube’s advertising program between 2012 and 2018.

YouTube terminated Mishiyev’s account in 2019 and removed his videos. YouTube explained that the termination resulted from repeated copyright violations. Mishiyev alleged instead that YouTube removed the videos in retaliation for his threats to file a lawsuit. He claimed that the termination caused lost subscribers, views, bookings, advertising revenue, and sponsorship revenue.

The complaint asserted six claims: breach of contract; intentional interference with prospective business advantage; interference with contractual relations; negligence; negligent interference with prospective economic relations; and injunctive relief. Defendants moved to dismiss under Rule 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim.

Court’s Analysis

Breach of contract. The court held that YouTube’s Terms of Service expressly authorized the conduct alleged. The terms prohibited copyright-infringing activity, allowed YouTube to remove content after proper notice, reserved YouTube’s right to remove content without prior notice, and allowed termination of a user determined to be a repeat infringer. Although the terms allowed users to submit counter-notices, they gave YouTube sole discretion over whether to take further action, including whether to restore the videos or send the counter-notice to the complaining copyright owner.

The court rejected Mishiyev’s argument that YouTube’s alleged retaliatory purpose overcame those express contractual rights. The complaint also did not dispute YouTube’s determination that Mishiyev lacked the necessary rights to post the content. The breach-of-contract claim was dismissed with prejudice because the agreement unambiguously foreclosed it and amendment would be futile.

The court also rejected a separate contract theory based on YouTube’s alleged failure to resolve technical problems affecting distribution of Mishiyev’s new content. The cited data-processing terms did not promise distribution in any specific manner, and the complaint’s allegations and exhibits linked the removal to copyright strikes rather than technical difficulties.

Negligence claims. The court found that the complaint did not allege a duty independent of YouTube’s contractual obligations. Under the authorities discussed by the court, implied duties arising from contract remain contractual duties and do not create the separate tort duty needed for a negligence claim. The negligence and negligent-interference claims were dismissed with prejudice because the proposed amendments did not substantively change the allegations and Mishiyev did not explain how further amendments would cure the defects.

Interference claims. The intentional-interference claim failed because Mishiyev did not identify a contract between himself and a third party. The court also found that the claimed future subscribers, views, bookings, advertising, and sponsorship revenue were speculative or arose from the parties’ own agreement. The claim for interference with prospective economic advantage likewise failed because Mishiyev did not identify a specific economic relationship with a third party.

Injunctive relief. The court ruled that injunctive relief is a remedy rather than an independent cause of action. Because none of Mishiyev’s other claims survived, the request for injunctive relief also failed.

Disposition

The court granted defendants’ motion to dismiss. It found that amendment would be futile and dismissed the action with prejudice.