Court upholds forum selection clause in YouTube’s terms of use

Bowen v. YouTube, Inc., No. 08-5050, 2008 WL 1757578 (W.D.Wash. April 15, 2008)

Plaintiff Bowen, a registered YouTube user, sued YouTube over some harassing comments others had posted about her on the site, as well as for some sort of dissatisfaction about misappropriation of her intellectual property rights. (The opinion is not clear about exactly what Bowen’s claims were.)

YouTube moved to dismiss the complaint for, among other things, improper venue, invoking a provision of the site’s Terms of Use which read:

You agree that: (i) the YouTube Website shall be deemed solely based in California; and (ii) the YouTube Website shall be deemed a passive website that does not give rise to personal jurisdiction over YouTube, either specific or general, in jurisdictions other than California. These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and YouTube that arises in whole or in part from the YouTube Website shall be decided exclusively by a court of competent jurisdiction located in San Mateo County, California.

Looking to the cases of Pebble Beach Co. v. Caddy, 453 F.3d 1151 (9th Cir.2006), Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1020 (9th Cir.2000) and Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418-20 (9th Cir.1997), the court observed that “for the proposition that when a ‘website advertiser [does] nothing other than register a domain name and post an essentially passive website’ and nothing else is done ‘to encourage residents of the forum state,’ there is no personal jurisdiction.”

The court found that Bowen’s allegations arose from her use of YouTube, and no conduct was alleged to provide the “something more” necessary for rendering YouTube subject to jurisdiction in the Western District of Washington.