Newman v. Google LLC

Background

The plaintiffs are African American and Hispanic content creators who brought a proposed class action against YouTube and Google. They alleged that YouTube’s content-moderating algorithm treated their videos less favorably than similar videos posted by white users. The alleged adverse decisions included removing videos, limiting who could view them through Restricted Mode, and preventing creators from earning money from them.

The Fifth Amended Complaint relied primarily on language in YouTube’s Community Guidelines stating that YouTube applies the guidelines to everyone equally, regardless of the creator’s background or other characteristics. The plaintiffs claimed that this language was an enforceable promise to moderate content without race-based differences. They asserted claims for breach of contract, breach of the implied covenant of good faith and fair dealing, unfair competition, accounting, conversion, and replevin.

The court noted that the case originally included constitutional and other discrimination claims, but earlier rulings removed those claims. The remaining case was primarily a dispute over whether YouTube breached a contract. The court also stated that the plaintiffs adequately pleaded jurisdiction under the Class Action Fairness Act.

The Contract Promise

For a breach-of-contract claim under California law, a plaintiff must adequately allege a contract, performance or an excuse for nonperformance, a breach, and resulting damages. YouTube conceded that its Terms of Service, which incorporated the Community Guidelines, formed a valid agreement supported by consideration and mutual assent.

YouTube argued that the equal-treatment language was not an enforceable promise because YouTube retained broad discretion over content moderation. The court rejected that argument at the pleading stage. It held that the language read like a guarantee of identity-neutral treatment, was definite enough to identify YouTube’s obligation, and could be used to determine whether YouTube had performed or breached the agreement.

Alleged Breach

The court nevertheless held that the plaintiffs had not adequately alleged a breach. The possibility that an algorithm could discriminate based on race was plausible in general, but the complaint needed enough factual content to support a reasonable inference that these plaintiffs’ videos had actually been treated differently because of race.

The plaintiffs relied mainly on a chart comparing 32 restricted videos with 58 unrestricted videos posted by white users. The court found the chart inadequate for several reasons. Twenty-six comparator videos were posted by “Large Corporations,” but the plaintiffs did not provide a sound basis for treating corporations as white or show that YouTube classified corporations that way. Other comparisons involved substantially different subject matter, making them poor comparisons. For example, the court found that a video discussing alleged sabotage by YouTube was not meaningfully comparable to a tutorial about contacting YouTube Support.

The court found that only a small number of comparisons were potentially useful, including comparisons involving boxing videos and graphic Halloween makeup videos. But the complaint did not provide enough context about how the relevant users’ other videos were treated. The court stated that evidence that an algorithm sometimes makes inconsistent decisions would not itself show a breach, because YouTube promised not to make identity-based distinctions, not to create an error-free system.

The court also held that several alleged restrictions occurred before YouTube added the equal-treatment language to the Community Guidelines. Those events could not establish a breach of a promise that YouTube had not yet made. Alleged statements by YouTube representatives in 2017 about bias in its tools were too vague, too old, and too disconnected from the plaintiffs and their videos to cure the complaint’s deficiencies.

Disposition

The court granted YouTube’s motion to dismiss. It dismissed the breach-of-contract claim because the plaintiffs did not adequately allege a breach, and dismissed the remaining claims because the latest complaint did not remedy deficiencies identified in prior rulings. The dismissal was with prejudice because the plaintiffs had six opportunities to plead their claims adequately and counsel stated at the hearing that this was the best complaint the plaintiffs could provide.

The court also ordered both sides not to remove or otherwise make unavailable the videos cited in the complaint until the appellate process had ended.