Last February, a D.C.-based band called the Rasta Rock Opera was celebrating a modest viral hit, a music video featuring two young kids on a Valentine's Day date. Guitarist and composer Stevie Marco passed the video around on social media platforms to professional contacts and friends -- including the kindergarten class of one of the video's young stars.
So Marco was surprised and dismayed to find that, in April, the video had been taken down from YouTube with only two lines of explanation: A notice that said, "This video has been removed because its content violated YouTube's Terms of Service. Sorry about that."
Marco reached out to YouTube to find out what was going on and to answer questions from friends and colleagues about what had happened with the video and what might have flagged YouTube's automatic filters.
Much later, Marco learned that YouTube thought he was using bots to artificially inflate view counts; Marco says he didn't use anything of the kind and is also fighting that claim in court. But, he argues, even if YouTube thought he was engaging in shady click-count behavior, it could have just said so. Instead, that vague message about a "content" problem made people think the video's producers stood accused of something much worse than click inflation.
"People thought we were copyright infringers, pornographers," Marco said. After the video was taken down and the notice put up in its place, Marco said that he lost a valuable performance opportunity with Nike. The kindergartners teased their star classmate about his fall from grace. And the Rasta Rock Opera also lost a valuable financial backer who distanced himself from the group when the video was taken down.
"He had that link sent out to all kinds of people," Marco said. "He said, 'This is a group I support." And that backfired on him, too."
YouTube, for its part, has said that it doesn't think the accusation holds water. The Google-owned video site declined to comment but said in a court filing that its statement couldn't be libelous because they believe it was true. "The libel claim fails because the notice in question was accurate, not defamatory," YouTube's lawyers said in a court filing.
It has been historically pretty difficult to sue digital platforms for defamation. In many past cases, courts have ruled that platforms such as YouTube are well-protected by their terms and conditions agreements -- a document that any person must say they've agreed to and signed before adding a video to the site. That precedent legally protects platforms such as Facebook, Twitter, Google or Wikipedia from being held responsible for objectionable or illegal things that their millions of users might post at any given moment.
"If you don't play by their rules, its within their legal rights to kick them out of their home," said Bradley Shear, an attorney who specializes in online media. "If this lawsuit comes to fruition and YouTube and Google are held responsible, it would create a new type of standard. I'm not sure that's in the public's best interest."
Robert Corn-Revere, a partner at Davis Wright Tremaine, also said he's unsure why a notice of a community guideline violation would immediately be seen as an accusation of illegal conduct. "It's hard to imagine any conceivable defamation claim based on a simple statement that a video violates the terms of service," he said.
But D.C. District Court Judge Rosemary Collyer -- who heard the case in Washington before ruling it should be transferred to YouTube's home turf in the Northern District Court of California -- wasn't so sure.
The sticking point was the word "content." She agreed with the argument from Marco's lawyers that a normal YouTube viewer probably doesn't know what content trips YouTube's censors, and that the Terms of Service the company linked to from its notice don't use "good language" to indicate that click inflation could fall under the umbrella of a content issue under the site's guidelines. That's not covered in YouTube's "community guidelines," either, which only offers up examples such as child exploitation, violence and hate speech when listing content violations.
If the video was getting help from bots, Collyer said, "there's not a question in my mind as to whether that might violate the terms of service. But it's not a content issue."
Now that the case is in California, the Rasta Rock Opera's lawyers have asked for a summary judgement on their libel claims; that's been scheduled for May 1. And Marco said that he's now heard from over 100 other YouTube users -- and many musicians -- who say they've had similar experiences with YouTube. After hearing that, he said he has no intention to settle with Google.
"We have to fight for all of these independent musicians," he said.