Petition for Writ of Certiorari — Word of God Fellowship, Inc., dba Daystar Television Network, Petitioner v. Vimeo, Inc., et al.
Supreme Court briefOct 19, 2022
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App. 1
205 A.D.3d 23
Supreme Court, Appellate Division,
First Department, New York.
WORD OF GOD FELLOWSHIP, INC. doing business
as Daystar Television Network, Plaintiff-Appellant,
v.
VIMEO, INC., et al., Defendants-Respondents.
Appeal No. 15460
|
Index No. 653735/20
|
Case No. 2021-00793
|
ENTERED March 22, 2022
Attorneys and Law Firms
Day Pitney LLP, New York City (Alfred W.J. Marks and
Gregory R. Bruno of counsel), and Kelly Hart & Hallman, LLP, Fort Worth, TX (Michael D. Anderson and
Caleb B. Bulls, of the Texas bar, admitted pro hac vice,
of counsel), for appellant.
Vimeo, Inc., New York City (Michael A. Cheah and Neel
Chopra of counsel), and Cuti Hecker Wang LLP, New
York City (John R. Cuti and Alexander Goldenberg of
counsel), for respondents.
Barbara R. Kapnick, J.P., Ellen Gesmer, Jeffrey K.
Oing, Anil C. Singh, Saliann Scarpulla, JJ.
App. 2
Opinion
SINGH, J.
This appeal concerns whether a video-hosting service may be held liable for its decision to remove videos
that it determines violate its terms of service. Defendant Vimeo, Inc. prohibits users from posting videos
that make false or misleading claims about vaccine
safety. It removed five videos, posted by a commercial
user, because the videos claimed that childhood vaccination leads to autism. The user sued, claiming that
Vimeo had breached the parties’ contract. The motion
court held that liability was precluded by section 230
of the Communications Decency Act (CDA). We agree.
Section 230 prevents lawsuits against Internet service
providers for their good faith decisions to remove
content that they consider objectionable. If service
providers had to justify those decisions in court, or if
plaintiffs could circumvent immunity through unsupported accusations of bad faith, section 230 would be a
dead letter. This is as true for commercial users as for
any other plaintiff. Therefore, we affirm dismissal of
the complaint.
Facts
Plaintiff Daystar Television Network states that it
is “an evangelical Christian-based television network.”
It alleges that Vimeo “is a video hosting, sharing and
services platform,” and that defendant VHX Corporation is a wholly-owned subsidiary of Vimeo. Daystar
streamed videos to its website and contracted with
App. 3
defendants to host those videos. Specifically, in October
2019, Daystar purchased a two-year subscription to defendants’ enterprise service, which defendants called
their OTT (over-the-top) service. This subscription enabled Daystar to upload up to 2,000 hours of video, per
year, to be hosted by Vimeo and VHX. Daystar would
take full advantage of this capacity, uploading over
3,000 videos with an average length of an hour. In September 2020, it even purchased additional bandwidth.
The terms of the October 2019 purchase order incorporated Vimeo’s enterprise terms. The enterprise
terms, in turn, incorporated the online terms applicable to the OTT subscription service. Both the enterprise terms and the incorporated online terms
authorized Vimeo to remove videos that failed to comply with its acceptable use policy. Among potential violations of this policy was “any content” that “[m]akes
false or misleading claims about vaccination safety.”1
Vimeo had publicly announced the introduction of
these terms in a blog post on June 26, 2019.
Among the thousands of videos that Daystar uploaded to defendants’ platform were six claiming a
causal link between vaccines and childhood autism. On
Daystar argues that this policy does not apply to its agreement with defendants, because defendants did not provide the
online terms for the OTT subscription service. Daystar failed to
raise this argument prior to oral argument below. Moreover, defendants have provided sufficient evidence that those terms gave
Vimeo the right to remove false or misleading claims on vaccine
safety, and Daystar has not rebutted this showing with documentary evidence.
1
App. 4
July 17, 2020, Vimeo wrote to Daystar that these videos violated Vimeo’s acceptable use policy. Daystar alleges that, on July 24, 2020, Vimeo removed five of the
videos. Daystar does not allege that defendants terminated services to Daystar prior to expiration of the
two-year subscription term, or that Vimeo took down
any of Daystar’s (several thousand) other videos.
Discussion
Daystar filed suit in New York County alleging
breach of contract and unjust enrichment. Supreme
Court dismissed the complaint as barred by Vimeo’s
immunity under 47 USC § 230(c)(2), the Communications Decency Act. We find that Supreme Court correctly dismissed this lawsuit.
With specified exceptions, section 230(c)(2) prohibits holding an interactive computer service provider2
liable for “any action voluntarily taken in good faith to
restrict access to or availability of material that the
provider . . . considers to be obscene, lewd, lascivious,
filthy, excessively violent, harassing, or otherwise objectionable” (47 USC § 230[c][2][A]). Courts have construed section 230 as authorizing broad immunity (see
Shiamili v. Real Estate Group of N.Y., Inc., 17 N.Y.3d
281, 288, 929 N.Y.S.2d 19, 952 N.E.2d 1011 [2011]
[“Both state and federal courts around the country
have ‘generally interpreted Section 230 immunity
broadly’ ”], quoting Universal Communication Sys., Inc.
The parties do not dispute that Vimeo is the provider of an
“interactive computer service” (see 47 USC § 230[f ][2]).
2
App. 5
v. Lycos, Inc., 478 F.3d 413, 418 [1st Cir. 2007]; see also
Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 18
[1st Cir. 2016] [citing federal authority to show “nearuniversal agreement that section 230 should not be
construed grudgingly”], cert denied ___ U.S. ___, 137
S. Ct. 622, 196 L.Ed.2d 579 [2017]). When a complaint
makes evident that this immunity applies, the court
may dismiss that complaint (Ricci v. Teamsters Union
Local 456, 781 F.3d 25, 28 [2d Cir. 2015]; see e.g. National Assn. of the Deaf v. Harvard Univ., 377 F. Supp.
3d 49, 69 [D. Mass. 2019] [dismissing claims as to content for which “it is apparent that the CDA will shield
(defendant) from liability”]).
Section 230(c)(2) Applies to This Suit
Daystar asserts that section 230(c)(2) does not apply to breach of contract claims. Its sole basis for this
argument, however, is broad dictum in a decision that
has since been withdrawn (see Domen v. Vimeo, Inc., 6
F4th 245, 253 [2d Cir. 2021] [“Certain claims sounding
in contract or tort may be beyond the reach of Section
230(c)(2)’s protection from suit”] [emphasis added],
withdrawn 2021 WL 4399692, 2021 US App LEXIS
29214 [2d Cir Sept. 23, 2021, 20-616-cv], petition for
cert filed No. 21-1142, 2022 WL 827911 [Feb. 14, 2022]).
Moreover, even if there were an exception for contractual obligations to host specific content, such an exception would not apply when a contract unambiguously
authorizes one party to remove the type of content at
issue.
App. 6
Neither is the statute limited to material explicitly
associated with the service provider. Section 230 immunizes “any action . . . to restrict access to or availability of material” by “any information service, system,
or access software provider that provides or enables
computer access by multiple users to a computer
server” (47 USC § 230[c][2], [f ] [emphasis added]). This
unambiguous statutory language extends to removal
of all material that a provider hosts, including material
that is displayed on another party’s website.
The Videos were “Otherwise Objectionable” under
Section 230
Daystar argues that section 230(c)(2) does not
cover the removed videos because “otherwise objectionable” material must resemble the other categories of
material listed in section 230(c)(2). Given the differences between these categories, however, the broad final term need not have anything in common with the
narrower – but varied – earlier terms (Enigma Software Group USA, LLC v. Malwarebytes, Inc., 946 F.3d
1040, 1051-1052 [9th Cir. 2019] [holding that canon of
ejusdem generis does not apply to section 230(c)(2), cert
denied ___ U.S. ___, 141 S. Ct. 13, 208 L.Ed.2d 197
[2020]; see People v. Reilly, 255 App. Div. 109, 110-111,
6 N.Y.S.2d 161 [4th Dept. 1938] [declining to read characteristic of some, but not all, related provisions into
“otherwise” term], affd 280 N.Y. 509, 19 N.E.2d 919
[1939]; see also CSX Transp., Inc. v. Alabama Dept. of
Revenue, 562 U.S. 277, 295, 131 S.Ct. 1101, 179 L.Ed.2d
37 [2011] [“A canon meaning literally ‘of the same kind’
App. 7
has no application to provisions directed toward dissimilar subject matter”]).
In other words, content may be “otherwise objectionable” without being obscene, excessively violent,
harassing, or anything similar (Enigma Software
Group, 946 F.3d at 1051 [“But we cannot . . . ignore the
breadth of the term ‘objectionable’ by construing it to
cover only material that is sexual or violent in nature”]; see Domen v. Vimeo, Inc., 433 F. Supp. 3d 592,
603-604 [S.D.N.Y. 2020] [“Domen I”] [finding immunity
under section 230(c)(2) because Vimeo subjectively
considered objectionable a video that was not violent,
sexual, or harassing], affd on other grounds 2021 WL
4352312, 2021 US App LEXIS 28995 [2d Cir. Sept. 24,
2021, No. 20-616-cv], petition for cert filed No. 21-1142,
2022 WL 827911 [Feb. 14, 2022]; see also Daniels v.
Alphabet Inc., 2021 WL 1222166, *12-13, 2021 US Dist
LEXIS 64385 [N.D. Cal. Mar. 31, 2021, No. 20-cv04687-VKD] [applying section 230(c)(2) immunity to
removal of videos that purportedly violated service
provider’s policy against promoting medical misinformation]). Daystar’s contrary decisions from California
predate Enigma Software Group and, in any case, were
not based on the material’s content (see Song Fi Inc. v.
Google, Inc., 108 F. Supp. 3d 876, 882-884 [N.D. Cal.
2015] [denying CDA immunity to removal of video
with unobjectionable content where provider contended that inflated view count was objectionable];
Sherman v. Yahoo! Inc., 997 F. Supp. 2d 1129, 11371138 [S.D. Cal. 2014] [finding CDA inapplicable because defendant did not analyze material to identify
App. 8
objectionable content]). Although Daystar cites one unreported case that arguably supports its position (National Numismatic Certification, LLC v. eBay, Inc.,
2008 WL 2704404, 2008 US Dist LEXIS 109793 [M.D.
Fla. July 8, 2008, No. 6:08-cv-42-Orl-19 (GJK)]), we
find it less persuasive than recent decisions reaching
the opposite conclusion. Under section 230(c)(2), then,
vaccine misinformation may be “otherwise objectionable” content that providers are entitled to remove.
Daystar alleges that its videos do not make “false
or misleading” claims, as prohibited by Vimeo’s acceptable use policy. Accordingly, it argues that the videos were not “objectionable” and that Vimeo did not
have the contractual right to remove those videos. This
argument is unavailing because whether content is objectionable is a subjective determination that is reserved to the service provider (Domen I, 433 F. Supp.
3d at 603-604, citing Zango, Inc. v. Kaspersky Lab, Inc.,
2007 WL 5189857, *4, 2007 US Dist LEXIS 97332
[W.D. Wash. Aug. 28, 2007, No. 07-CV-00807 (JCC)],
affd 568 F.3d 1169 [9th Cir 2009]). Section 230 bars
“ ‘lawsuits seeking to hold a service provider liable for
its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw,
postpone or alter content’ ” (Shiamili, 17 N.Y.3d at 289,
929 N.Y.S.2d 19, 952 N.E.2d 1011, quoting Zeran v.
America Online, Inc., 129 F.3d 327, 330 [4th Cir. 1997],
cert denied 524 U.S. 937, 118 S.Ct. 2341, 141 L.Ed.2d
712; see also Murawski v. Pataki, 514 F. Supp. 2d 577,
591 [S.D. N.Y. 2007] [“Deciding whether or not to remove content or deciding when to remove content falls
App. 9
squarely within (defendant’s) exercise of a publisher’s
traditional role and is therefore subject to the CDA’s
broad immunity”]). If the CDA immunizes Vimeo’s removal of false or misleading claims about vaccine
safety, it also immunizes Vimeo’s good faith decision
that a claim is false or misleading (see e360 Insight,
LLC v. Comcast Corp., 546 F. Supp. 2d 605, 609 [N.D.
Ill. 2008] [“Under the law, a mistaken choice to block,
if made in good faith, cannot be the basis for liability
under federal or state law”]). Requiring service providers to bear the cost of proving their decisions correct,
even at the summary judgment stage, would undermine the purpose of the CDA (see Nemet Chevrolet,
Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255
[4th Cir. 2009] [“We thus aim to resolve the question of
§ 230 immunity at the earliest possible stage of the
case because that immunity protects websites not only
from ‘ultimate liability,’ but also from ‘having to fight
costly and protracted legal battles’ “], quoting Fair
Hous. Council of San Fernando Val. v. Roommates.Com,
LLC, 521 F.3d 1157, 1175 [9th Cir. 2008]; e360 Insight,
546 F. Supp. 2d at 609 [“To force a provider . . . to litigate the question of whether what it blocked was or
was not (objectionable material) would render § 230(c)(2)
nearly meaningless”]).
Accepting as true the facts as alleged in the complaint, and according Daystar the benefit of every possible favorable inference (see Landon v. Kroll Lab.
Specialists, Inc., 22 N.Y.3d 1, 5-6, 977 N.Y.S.2d 676, 999
N.E.2d 1121 [2013]), the face of the complaint shows
that Vimeo’s removal of material it considered to be
App. 10
“otherwise objectionable” and in violation of its acceptable use policy is protected by the CDA.
Daystar Has Not Pleaded Bad Faith
Daystar argues that, even if the videos could be
considered “otherwise objectionable,” section 230 does
not apply because defendants acted in bad faith. Daystar alleges that defendants solicited its business, that
the objectionable videos were posted on Daystar’s website at the time, and that defendants represented that
Daystar was an ideal long-term partner with content
that was a good fit for their platform. At the time, Daystar hosted more than 3,000 hours of content. Nevertheless, because these six videos were “not a secret,”
Daystar alleges that defendants “knew that Daystar’s
content included vaccine programming.”
Even accepting Daystar’s allegations as true, however, these facts do not support a finding of bad faith
on the part of defendants. Daystar does not allege, for
example, that defendants indicated that the vaccination content specifically was a good fit or that the acceptable use policy did not apply to Daystar. Nor does
it allege that Vimeo’s stated grounds to remove the videos were a pretext for some illicit reason (compare
Enigma Software Group, 946 F.3d at 1052 [holding
that section 230(c)(2) does not apply to decisions that
are driven by anticompetitive animus]; e-ventures
Worldwide, LLC v. Google, Inc., 2017 WL 2210029, *3,
2017 US Dist LEXIS 88650 [M.D. Fla. Feb. 8 2017, No.
2:14-cv-646 (PAM) (CM)] [finding bad faith properly
App. 11
pleaded when factual allegations indicated possible
anticompetitive motive for removal of content]).
Neither does good faith require that the material
be reviewed by an expert. Daystar alleges that the
defendants removed the videos without consulting a
medical professional. Daystar contends that this
shows bad faith but cites no authority that service
providers are required to seek expert advice before removing content. Indeed, such a requirement would
increase the costs of removing content and would significantly interfere with a service provider’s decisions
as a publisher. Both consequences would be fundamentally at odds with the purpose of section 230(c)(2) (see
Shiamili, 17 N.Y.3d at 287, 929 N.Y.S.2d 19, 952 N.E.2d
1011 [stating that section 230 was enacted “ ‘to keep
government interference in the medium to a minimum’ ” and “ ‘to encourage service providers to selfregulate the dissemination of offensive material over
their services’ ”], quoting Zeran, 129 F.3d at 330, 331).
Daystar has alleged only that Vimeo attempted to
comply with its acceptable use policy, which was set
forth in the terms of service and which it had publicly
announced before Daystar signed the purchase order
at issue. Such actions do not amount to bad faith (see
Domen I, 433 F. Supp. 3d at 603-604; Daniels, 2021 WL
1222166, *12-13, 2021 US Dist LEXIS 64385). Daystar’s remaining allegations of bad faith are “bare legal
conclusions,” which are not entitled to be presumed
true (Kaisman v. Hernandez, 61 A.D.3d 565, 566,
878 N.Y.S.2d 305 [1st Dept. 2009]; see Domen I, 433
F. Supp. 3d at 604 [dismissing cause of action under
App. 12
section 230(c)(2) because the plaintiff failed to allege
facts supporting an inference of bad faith]; e360 Insight, 546 F. Supp. 2d at 609 [same]).
Conclusion
Because section 230 applies, Daystar’s claims for
breach of contract and unjust enrichment should be
dismissed, whether or not Daystar has stated a cause
of action. Vimeo’s right to remove the objectionable videos is determined entirely by the terms of the agreement between Daystar and Vimeo. Because a contract
governs this dispute, Daystar cannot maintain a cause
of action for unjust enrichment (see Corsello v. Verizon
N.Y., Inc., 18 N.Y.3d 777, 790-791, 944 N.Y.S.2d 732,
967 N.E.2d 1177 [2012]; Clark-Fitzpatrick, Inc. v. Long
Is. R.R. Co., 70 N.Y.2d 382, 388-389, 521 N.Y.S.2d 653,
516 N.E.2d 190 [1987]).
After due consideration, we reject Daystar’s remaining arguments.
Accordingly, the order of the Supreme Court, New
York County (Barry R. Ostrager, J.), entered on or
about February 8, 2021, which granted the CPLR 3211
motion of defendants Vimeo, Inc., VHX Corporation,
and Livestream, LLC to dismiss the complaint, should
be affirmed, with costs.
Opinion by Singh, J. All concur
App. 13
Order, Supreme Court, New York County (Barry R.
Ostrager, J.), entered on or about February 8, 2021,
affirmed, with costs.
App. 14
SUPREME COURT OF THE STATE OF NEW
YORK NEW YORK COUNTY
PRESENT: HON. BARRY R. OSTRAGER PART
IAS MOTION 61 EFM
Justice
--------------------------------------------X
INDEX NO.
WORD OF GOD FELLOWSHIP,
653735/2020
INC. d/b/a DAYSTAR
MOTION DATE
TELEVISION NETWORK,
Plaintiff,
--------------------------------------------------------------------------------------------------------------- MOTION SEQ. NO.
001
-v---------------------------------------------------------------------------------------------------------------
VIMEO, INC., VHX CORPORATION, and LIVESTREAM, LLC,
Defendants
--------------------------------------------X
DECISION +
ORDER ON
MOTION
(Filed Feb. 5, 2021)
HON. BARRY R. OSTRAGER
The Court heard oral argument via Microsoft
Teams on February 5, 2021 on the motion by defendants Vimeo, Inc., VHX Corporation, and Livestream,
LLC (together “Vimeo”) for an order, pursuant to CPLR
3211(a)(1) and (7), dismissing this action based on documentary evidence and failure to state a cause of action. The Court granted the motion on the record and
dismissed the Complaint filed by plaintiff Word of God
Fellowship, Inc. d/b/a Daystar Television Network
(“Daystar”) for the reasons stated on the record. This
decision and order summarizes the Court’s reasoning.
App. 15
According to the Complaint (NYSCEF Doc. No. 1),
Daystar is an evangelical Christian-based television
network that broadcasts its programming around the
world. In addition to broadcast television, Daystar utilizes other media platforms, such as internet-based
and live streaming platforms. Vimeo is a video hosting,
sharing and services platform, similar to YouTube. Its
Vimeo OTT platform allows users to upload video
content to its website that can then be accessed and
viewed by others.
The parties here entered into a written agreement
entitled “Order Form” with a start date of October 4,
2019 for the Vimeo services at issue (NYSCEF Doc. No.
9). The Order Form expressly incorporated by reference Vimeo’s “Enterprise Terms’ available on its website (NYSCEF Doc. No. 10). The Enterprise Terms
expressly incorporated by reference the “applicable
online terms of service.” As particularly relevant here,
Vimeo’s Terms of Service Agreement (NYSCEF Doc.
No. 11) included at Section 5 Vimeo’s “Acceptable Use
Policy.” Section 5.2, entitled “Content Restrictions”,
lists thirteen categories of restrictions and states: “You
may not submit any content that . . . [m]akes false or
misleading claims about vaccination safety.”
At some point it came to Vimeo’s attention that
five of Daystar’s approximately fourteen vaccine-related videos connected vaccines to autism. Vimeo contacted Daystar and asked Daystar to remove those five
videos from their library of thousands of videos on the
ground that the videos contained “false or misleading
claims about vaccination safety.” When Daystar did not
App. 16
remove the videos, Vimeo removed the videos itself.
Daystar then commenced this action, asserting claims
of breach of contract and unjust enrichment and seeking rescission and damages. In response, Vimeo filed
the instant motion to dismiss.
In granting the motion to dismiss on the record,
the Court found that Vimeo’s decision to remove the
five vaccine-related videos based on its posted “Content Restrictions” was cloaked with immunity under
the Communications Decency Act, 47 U.S.C. § 230(c)(2),
as recently construed by the District Court in the
Southern District of New York in Domen v. Vimeo, Inc.,
433 F. Supp. 3d 592 (S.D.N.Y. 2020), appeal filed Feb.
18, 2020. Specifically, 47 U.S.C. § 230(c)(2) immunizes
providers like Vimeo in cases such as this one, stating
that: “No provider . . . of an interactive computer service shall be held liable on account of . . . any action
voluntarily taken in good faith to restrict access to or
availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively
violent, harassing, or otherwise objectionable, whether
or not such material is constitutionally protected.”
Vimeo here removed content that it found objectionable based on its written policies prohibiting the posting of misleading information about vaccines. Section
230(c)(2) “does not require that the material actually
be objectionable; rather, it affords protection for blocking material ‘that the provider or user considers to be’
objectionable.” Domen, 433 F. Supp. 3d at 603-04, citing
Zango, Inc. v. Kaspersky Lab, Inc., No. 07-CV-00807
App. 17
(JCC), 2007 WL 5189857, at *4 (W.D. Wash. Aug. 28,
2007), aff ’d, 568 F.3d 1169 (9th Cir. 2009).
Even if Vimeo were not protected by the federal
immunity statute, the Court found that Daystar had
failed to state a claim for breach of contract. Vimeo
acted in good faith when it determined, consistent with
the generally accepted view, that it was misleading to
suggest that vaccines cause autism, and Vimeo’s decision to remove the five videos was in accordance with
its Terms of Service. Daystar presented no evidence to
create an issue of fact challenging Vimeo’s good faith
application of its policies. Daystar’s unjust enrichment
claim also fails as it is duplicative of the contract claim.
Clark-Fitzpatrick Inc. v. Long Is. RR Co., 70 NY2d 382
(1987).
Accordingly, for the reasons stated herein and in
the transcript of proceedings on the record on February
5, 2021, defendants’ motion to dismiss is granted, and
the Clerk is directed to enter judgment dismissing this
proceeding with prejudice.
Dated: February 5, 2021
/s/ Barry Ostrager
BARRY R. OSTRAGER, J.S.C.
CHECK ONE:
X CASE DISPOSED
X GRANTED
APPLICATION:
SETTLE ORDER
CHECK IF APPROPRIATE:
INCLUDES TRANSFER/REASSIGN
DENIED
App. 18
NON-FINAL DISPOSITION
GRANTED IN PART
OTHER
SUBMIT ORDER
FIDUCIARY APPOINTMENT
REFERENCE
App. 19
38 N.Y.3d 912 Unpublished Disposition
(The decision of the Court of Appeals of
New York is referenced in the New York
Supplement and North Eastern Reporter
as a decision without published opinion.)
This motion is uncorrected and subject to revision
before publication in the printed Official Reports.
Court of Appeals of New York.
WORD OF GOD FELLOWSHIP, INC., etc., Appellant,
v.
VIMEO, INC., et al., Respondents.
2022-337
|
July 21, 2022
Opinion
Motion for leave to appeal denied.
App. 20
U.S.C.A. Const. Amend. I
Amendment I. Establishment of Religion;
Free Exercise of Religion; Freedom of Speech
and the Press; Peaceful Assembly;
Petition for Redress of Grievances
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
App. 21
PUBLIC LAW 104-104—FEB. 8, 1996 110 STAT. 133
Telecommunications Act of 1996
TITLE V—OBSCENITY AND VIOLENCE
Subtitle A—Obscene, Harassing, and Wrongful
Utilization of Telecommunications Facilities
SEC. 501. SHORT TITLE.
This title may be cited as the “Communications
Decency Act of 1996”.
SEC. 502. OBSCENE OR HARASSING USE OF
TELECOMMUNICATIONS FACILITIES UNDER THE COMMUNICATIONS ACT OF 1934.
Section 223 (47 U.S.C. 223) is amended—
(1) by striking subsection (a) and inserting
in lieu thereof:
“(a) Whoever—
“(1) in interstate or foreign communications—
“(A) by means of a telecommunications device knowingly—
“(i) makes, creates, or solicits,
and
“(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication
which is obscene, lewd, lascivious, filthy,
or indecent, with intent to annoy, abuse,
threaten, or harass another person;
App. 22
“(B) by means of a telecommunications
device knowingly—
“(i) makes, creates, or solicits, and
“(ii) initiates the transmission of,
any comment, request, suggestion, proposal,
image, or other communication which is obscene or indecent, knowing that the recipient
of the communication is under 18 years of age,
regardless of whether the maker of such communication placed the call or initiated the
communication;
“(C) makes a telephone call or utilizes a
telecommunications device, whether or not
conversation or communication ensues, without disclosing his identity and with intent to
annoy, abuse, threaten, or harass any person
at the called number or who receives the communications;
“(D) makes or causes the telephone of
another repeatedly or continuously to ring,
with intent to harass any person at the called
number; or
“(E) makes repeated telephone calls or
repeatedly initiates communication with a
telecommunications device, during which conversation or communication ensues, solely to
harass any person at the called number or
who receives the communication; or
“(2) knowingly permits any telecommunications facility under his control to be used for any
activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined
App. 23
under title 18, United States Code, or imprisoned
not more than two years, or both.”; and
(2) by adding at the end the following new
subsections:
“(d) Whoever—
“(1) in interstate or foreign communications
knowingly—
“(A) uses an interactive computer
service to send to a specific person or persons under 18 years of age, or
“(B) uses any interactive computer
service to display in a manner available
to a person under 18 years of age,
any comment, request, suggestion, proposal,
image, or other communication that, in context, depicts or describes, in terms patently
offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user
of such service placed the call or initiated the
communication; or
“(2) knowingly permits any telecommunications facility under such person’s control to be
used for an activity prohibited by paragraph (1)
with the intent that it be used for such activity,
shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.
“(e) In addition to any other defenses available by law:
“(1) No person shall be held to have violated subsection (a) or (d) solely for providing
App. 24
access or connection to or from a facility,
system, or network not under that person’s
control, including transmission, downloading,
intermediate storage, access software, or
other related capabilities that are incidental
to providing such access or connection that
does not include the creation of the content of
the communication.
“(2) The defenses provided by paragraph (1) of this subsection shall not be applicable to a person who is a conspirator with an
entity actively involved in the creation or
knowing distribution of communications that
violate this section, or who knowingly advertises the availability of such communications.
“(3) The defenses provided in paragraph
(1) of this subsection shall not be applicable to
a person who provides access or connection to
a facility, system, or network engaged in the
violation of this section that is owned or controlled by such person.
“(4) No employer shall be held liable under this section for the actions of an employee
or agent unless the employee’s or agent’s conduct is within the scope of his or her employment or agency and the employer (A) having
knowledge of such conduct, authorizes or ratifies such conduct, or (B) recklessly disregards
such conduct.
“(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d), or under subsection (a)(2) with respect to the use of a
App. 25
facility for an activity under subsection
(a)(1)(B) that a person—
“(A) has taken, in good faith, reasonable, effective, and appropriate actions
under the circumstances to restrict or prevent access by minors to a communication
specified in such subsections, which may
involve any appropriate measures to restrict minors from such communications,
including any method which is feasible
under available technology; or
“(B) has restricted access to such
communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification
number.
“(6) The Commission may describe
measures which are reasonable, effective, and
appropriate to restrict access to prohibited
communications under subsection (d). Nothing in this section authorizes the Commission
to enforce, or is intended to provide the Commission with the authority to approve, sanction, or permit, the use of such measures.
The Commission shall have no enforcement
authority over the failure to utilize such
measures. The Commission shall not endorse
specific products relating to such measures.
The use of such measures shall be admitted
as evidence of good faith efforts for purposes
of paragraph (5) in any action arising under
subsection (d). Nothing in this section shall
be construed to treat interactive computer
App. 26
services as common carriers or telecommunications carriers.
“(f)(1) No cause of action may be brought in
any court or administrative agency against any
person on account of any activity that is not in violation of any law punishable by criminal or civil
penalty, and that the person has taken in good
faith to implement a defense authorized under
this section or otherwise to restrict or prevent the
transmission of, or access to, a communication
specified in this section.
“(2) No State or local government may impose any liability for commercial activities or actions by commercial entities, nonprofit libraries, or
institutions of higher education in connection with
an activity or action described in subsection (a)(2)
or (d) that is inconsistent with the treatment of
those activities or actions under this section: Provided, however, That nothing herein shall preclude
any State or local government from enacting and
enforcing complementary oversight, liability, and
regulatory systems, procedures, and requirements,
so long as such systems, procedures, and requirements govern only intrastate services and do not
result in the imposition of inconsistent rights, duties or obligations on the provision of interstate
services. Nothing in this subsection shall preclude
any State or local government from governing conduct not covered by this section.
“(g) Nothing in subsection (a), (d), (e), or (d)
or in the defenses to prosecution under subsection
(a) or (d) shall be construed to affect or limit the
App. 27
application or enforcement of any other Federal
law.
“(h) For purposes of this section—
“(1) The use of the term ‘telecommunications device’ in this section—
“(A) shall not impose new obligations on broadcasting station licensees
and cable operators covered by obscenity
and indecency provisions elsewhere in
this Act; and
“(B) does not include an interactive
computer service.
“(2) The term ‘interactive computer service’ has the meaning provided in section
230(e)(2).
“(3) The term ‘access software’ means
software (including client or server software)
or enabling tools that do not create or provide
the content of the communication but that allow a user to do any one or more of the following:
“(A) filter, screen, allow, or disallow
content;
“(B) pick, choose, analyze, or digest
content; or
“(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
App. 28
“(4) The term ‘institution of higher education’ has the meaning provided in section
1201 of the Higher Education Act of 1965 (20
U.S.C. 1141).
“(5) The term ‘library’ means a library
eligible for participation in State-based plans
for funds under title III of the Library Services and Construction Act (20 U.S.C. 355e et
seq.).”.
SEC. 503. OBSCENE PROGRAMMING ON CABLE
TELEVISION.
Section 639 (47 U.S.C. 559) is amended by striking
“not more than $10,000” and inserting “under title 18,
United States Code,”.
SEC. 504. SCRAMBLING OF CABLE CHANNELS
FOR NONSUBSCRIBERS.
Part IV of title VI (47 U.S.C. 551 et seq.) is
amended by adding at the end the following:
“SEC. 640. SCRAMBLING OF CABLE CHANNELS
FOR NONSUBSCRIBERS.
“(a) SUBSCRIBER REQUEST.—Upon request by a
cable service subscriber, a cable operator shall, without
charge, fully scramble or otherwise fully block the audio and video programming of each channel carrying
such programming so that one not a subscriber does
not receive it.
“(b) DEFINITION.—As used in this section, the
term ‘scramble’ means to rearrange the content of the
signal of the programming so that the programming
App. 29
cannot be viewed or heard in an understandable manner.”.
SEC. 505. SCRAMBLING OF SEXUALLY EXPLICIT
ADULT VIDEO SERVICE PROGRAMMING.
(a) REQUIREMENT.—Part IV of title VI (47 U.S.C.
551 et seq.), as amended by this Act, is further
amended by adding at the end the following:
SEC. 641. SCRAMBLING OF SEXUALLY EXPLICIT
ADULT VIDEO SERVICE PROGRAMMING.
“(a) REQUIREMENT.—In providing sexually explicit adult programming or other programming that
is indecent on any channel of its service primarily dedicated to sexually-oriented programming, a multichannel video programming distributor shall fully scramble
or otherwise fully block the video and audio portion of
such channel so that one not a subscriber to such channel or programming does not receive it.
“(b) IMPLEMENTATION.—Until a multichannel video
programming distributor complies with the requirement set forth in subsection (a), the distributor shall
limit the access of children to the programming referred to in that subsection by not providing such programming during the hours of the day (as determined
by the Commission) when a significant number of children are likely to view it.
“(c) DEFINITION.—As used in this section, the
term ‘scramble’ means to rearrange the content of the
signal of the programming so that the programming
App. 30
cannot be viewed or heard in an understandable manner.”.
(b) EFFECTIVE DATE.—The amendment made by
subsection (a) shall take effect 30 days after the date
of enactment of this Act.
SEC. 506. CABLE OPERATOR REFUSAL TO CARRY
CERTAIN PROGRAMS.
(a) PUBLIC, EDUCATIONAL, AND GOVERNMENTAL
CHANNELS.—Section 611(e) (47 U.S.C. 531(e)) is
amended by inserting before the period the following:
“, except a cable operator may refuse to transmit any
public access program or portion of a public access program which contains obscenity, indecency, or nudity”.
(b) CABLE CHANNELS FOR COMMERCIAL USE.—Section 612(c)(2) (47 U.S.C. 532(c)(2)) is amended by striking “an operator” and inserting “a cable operator may
refuse to transmit any leased access program or portion of a leased access program which contains obscenity, indecency, or nudity and”.
SEC. 507. CLARIFICATION OF CURRENT LAWS
REGARDING COMMUNICATION OF OBSCENE MATERIALS THROUGH THE USE
OF COMPUTERS.
(a) IMPORTATION OR TRANSPORTATION.—Section
1462 of title 18, United States Code, is amended—
(1) in the first undesignated paragraph, by
inserting “or interactive computer service (as defined in section 230(e)(2) of the Communications
Act of 1934)” after “carrier”; and
App. 31
(2) in the second undesignated paragraph—
(A) by inserting “or receives,” after
“takes”;
(B) by inserting “or interactive computer service (as defined in section 230(e)(2)
of the Communications Act of 1934)” after
“common carrier”; and
(C) by inserting “or importation” after
“carriage”.
(b) TRANSPORTATION FOR PURPOSES OF SALE OR DISTRIBUTION.—The first undesignated paragraph of section 1465 of title 18, United States Code, is amended—
(1) by striking “transports in” and inserting
“transports or travels in, or uses a facility or
means of,”;
(2) by inserting “or an interactive computer
service (as defined in section 230(e)(2) of the Communications Act of 1934) in or affecting such commerce” after “foreign commerce” the first place it
appears;
(3) by striking “, or knowingly travels in”
and all that follows through “obscene material in
interstate or foreign commerce,” and inserting
“of ”.
(c) INTERPRETATION.—The amendments made by
this section are clarifying and shall not be interpreted
to limit or repeal any prohibition contained in sections
1462 and 1465 of title 18, United States Code, before
such amendment, under the rule established in United
States v. Alpers, 338 U.S. 680 (1950).
App. 32
SEC. 508. COERCION AND ENTICEMENT OF
MINORS.
Section 2422 of title 18, United States Code, is
amended—
(1) by inserting “(a)” before “Whoever
knowingly”; and
(2) by adding at the end the following:
“(b) Whoever, using any facility or means of
interstate or foreign commerce, including the mail,
or within the special maritime and territorial jurisdiction of the United States, knowingly persuades, induces, entices, or coerces any individual
who has not attained the age of 18 years to engage
in prostitution or any sexual act for which any person may be criminally prosecuted, or attempts to
do so, shall be fined under this title or imprisoned
not more than 10 years, or both.”.
SEC. 509. ONLINE FAMILY EMPOWERMENT.
Title II of the Communications Act of 1934 (47
U.S.C. 201 et seq.) is amended by adding at the end the
following new section:
“SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING OF 47 USC 230. OFFENSIVE MATERIAL
“(a) FINDINGS.—The Congress finds the following:
“(1) The rapidly developing array of Internet and other interactive computer services
available to individual Americans represent an
App. 33
extraordinary advance in the availability of educational and informational resources to our citizens.
“(2) These services offer users a great degree
of control over the information that they receive,
as well as the potential for even greater control in
the future as technology develops.
“(3) The Internet and other interactive computer services offer a forum for a true diversity of
political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
“(4) The Internet and other interactive computer services have flourished, to the benefit of all
Americans, with a minimum of government regulation.
“(5) Increasingly Americans are relying on
interactive media for a variety of political, educational, cultural, and entertainment services.
“(b) POLICY.—It is the policy of the United
States—
“(1) to promote the continued development
of the Internet and other interactive computer services and other interactive media;
“(2) to preserve the vibrant and competitive
free market that presently exists for the Internet
and other interactive computer services, unfettered by Federal or State regulation;
“(3) to encourage the development of technologies which maximize user control over what
App. 34
information is received by individuals, families,
and schools who use the Internet and other interactive computer services;
“(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their
children’s access to objectionable or inappropriate
online material; and
“(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking
in obscenity, stalking, and harassment by means
of computer.
“(c) PROTECTION FOR ‘GOOD SAMARITAN’ BLOCKING
AND SCREENING OF OFFENSIVE MATERIAL.—
“(1) TREATMENT OF PUBLISHER OR SPEAKER.—
No provider or user of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information
content provider.
“(2) CIVIL LIABILITY.—No provider or user of
an interactive computer service shall be held liable on account of—
“(A) any action voluntarily taken in
good faith to restrict access to or availability
of material that the provider or user considers
to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is
constitutionally protected; or
“(B) any action taken to enable or make
available to information content providers or
App. 35
others the technical means to restrict access
to material described in paragraph (1).
“(d) EFFECT ON OTHER LAWS.—
“(1) NO EFFECT ON CRIMINAL LAW.—Nothing
in this section shall be construed to impair the enforcement of section 223 of this Act, chapter 71 (relating to obscenity) or 110 (relating to sexual
exploitation of children) of title 18, United States
Code, or any other Federal criminal statute.
“(2) NO EFFECT ON INTELLECTUAL PROPERTY
LAW.—Nothing in this section shall be construed
to limit or expand any law pertaining to intellectual property.
“(3) STATE LAW.—Nothing in this section
shall be construed to prevent any State from enforcing any State law that is consistent with this
section. No cause of action may be brought and no
liability may be imposed under any State or local
law that is inconsistent with this section.
“(4) NO EFFECT ON COMMUNICATIONS PRIVACY
LAW.—Nothing in this section shall be construed
to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.
“(e) DEFINITIONS.—As used in this section:
“(1) INTERNET.—The term ‘Internet’ means
the international computer network of both Federal and non-Federal interoperable packet switched
data networks.
App. 36
“(2) INTERACTIVE COMPUTER SERVICE.—The
term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by
multiple users to a computer server, including specifically a service or system that provides access to
the Internet and such systems operated or services offered by libraries or educational institutions.
“(3) INFORMATION CONTENT PROVIDER.—The
term ‘information content provider’ means any
person or entity that is responsible, in whole or in
part, for the creation or development of information provided through the Internet or any other
interactive computer service.
“(4) ACCESS SOFTWARE PROVIDER.—The term
‘access software provider’ means a provider of
software (including client or server software), or
enabling tools that do any one or more of the following:
“(A) filter, screen, allow, or disallow content;
“(B) pick, choose, analyze, or digest content; or
“(C) transmit, receive, display, forward,
cache, search, subset, organize, reorganize, or
translate content.”.
App. 37
Subtitle B—Violence
SEC. 551. PARENTAL CHOICE IN TELEVISION
PROGRAMMING.
(a) FINDINGS.—The Congress makes the following findings:
(1) Television influences children’s perception of the values and behavior that are common
and acceptable in society.
(2) Television station operators, cable television system operators, and video programmers
should follow practices in connection with video
programming that take into consideration that
television broadcast and cable programming has
established a uniquely pervasive presence in the
lives of American children.
(3) The average American child is exposed to
25 hours of television each week and some children are exposed to as much as 11 hours of television a day.
(4) Studies have shown that children exposed to violent video programming at a young age
have a higher tendency for violent and aggressive
behavior later in life than children not so exposed,
and that children exposed to violent video programming are prone to assume that acts of violence are acceptable behavior.
(5) Children in the United States are, on average, exposed to an estimated 8,000 murders and
100,000 acts of violence on television by the time
the child completes elementary school.
App. 38
(6) Studies indicate that children are affected by the pervasiveness and casual treatment
of sexual material on television, eroding the ability of parents to develop responsible attitudes and
behavior in their children.
(7) Parents express grave concern over violent and sexual video programming and strongly
support technology that would give them greater
control to block video programming in the home
that they consider harmful to their children.
(8) There is a compelling governmental interest in empowering parents to limit the negative
influences of video programming that is harmful
to children.
(9) Providing parents with timely information about the nature of upcoming video programming and with the technological tools that allow
them easily to block violent, sexual, or other programming that they believe harmful to their children is a nonintrusive and narrowly tailored
means of achieving that compelling governmental
interest.
(b) ESTABLISHMENT OF TELEVISION RATING CODE.—
(1) AMENDMENT.—Section 303 (47 U.S.C. 303)
is amended by adding at the end the following:
“(w) Prescribe—
“(1) on the basis of recommendations from
an advisory committee established by the Commission in accordance with section 551(b)(2) of the
Telecommunications Act of 1996, guidelines and
recommended procedures for the identification
App. 39
and rating of video programming that contains
sexual, violent, or other indecent material about
which parents should be informed before it is displayed to children: Provided, That nothing in this
paragraph shall be construed to authorize any rating of video programming on the basis of its political or religious content; and
“(2) with respect to any video programming
that has been rated, and in consultation with the
television industry, rules requiring distributors of
such video programming to transmit such rating
to permit parents to block the display of video programming that they have determined is inappropriate for their children.”.
(2) ADVISORY COMMITTEE REQUIREMENTS.—In establishing an advisory committee for purposes of the
amendment made by paragraph (1) of this subsection,
the Commission shall—
(A) ensure that such committee is composed
of parents, television broadcasters, television programming producers, cable operators, appropriate
public interest groups, and other interested individuals from the private sector and is fairly balanced in terms of political affiliation, the points of
view represented, and the functions to be performed by the committee;
(B) provide to the committee such staff and
resources as may be necessary to permit it to perform its functions efficiently and promptly; and
(C) require the committee to submit a final
report Reports. of its recommendations within one
App. 40
year after the date of the appointment of the initial members.
(c) REQUIREMENT FOR MANUFACTURE OF TELEVISIONS THAT BLOCK PROGRAMS.—Section 303 (47 U.S.C.
303), as amended by subsection (a), is further amended
by adding at the end the following:
“(x) Require, in the case of an apparatus designed to receive television signals that are shipped in
interstate commerce or manufactured in the United
States and that have a picture screen 13 inches or
greater in size (measured diagonally), that such apparatus be equipped with a feature designed to enable
viewers to block display of all programs with a common
rating, except as otherwise permitted by regulations
pursuant to section 330(c)(4)”.
(d) SHIPPING OF TELEVISIONS THAT BLOCK PROGRAMS.—
(1) REGULATIONS.—Section 330 (47 U.S.C.
330) is amended—
(A) by redesignating subsection (c) as
subsection (d); and
(B) by adding after subsection (b) the
following new subsection (c):
“(c)(1) Except as provided in paragraph (2), no
person shall ship in interstate commerce or manufacture in the United States any apparatus described in
section 303(x) of this Act except in accordance with
rules prescribed by the Commission pursuant to the
authority granted by that section.
App. 41
“(2) This subsection shall not apply to carriers
transporting apparatus referred to in paragraph (1)
without trading in it.
“(3) The rules prescribed by the Commission under this subsection shall provide for the oversight by
the Commission of the adoption of standards by industry for blocking technology. Such rules shall require
that all such apparatus be able to receive the rating
signals which have been transmitted by way of line 21
of the vertical blanking interval and which conform to
the signal and blocking specifications established by
industry under the supervision of the Commission.
“(4) As new video technology is developed, the
Commission shall take such action as the Commission
determines appropriate to ensure that blocking service
continues to be available to consumers. If the Commission determines that an alternative blocking technology exists that—
“(A) enables parents to block programming
based on identifying programs without ratings,
“(B) is available to consumers at a cost
which is comparable to the cost of technology that
allows parents to block programming based on
common ratings, and
“(C) will allow parents to block a broad
range of programs on a multichannel system as effectively and as easily as technology that allows
parents to block programming based on common
ratings, the Commission shall amend the rules
prescribed pursuant to section 303(x) to require
App. 42
that the apparatus described in such section be
equipped with either the blocking technology described in such section or the alternative blocking
technology described in this paragraph.”.
(2) CONFORMING AMENDMENT.—Section
330(d), as redesignated by subsection (d)(1)(A),
is amended by striking “section 303(s), and
section 303(u)” and inserting in lieu thereof
“and sections 303(s), 303(u), and 303(x)”.
(e) APPLICABILITY AND EFFECTIVE DATES.—
(1) APPLICABILITY OF RATING PROVISION.—
The amendment made by subsection (b) of
this section shall take effect 1 year after the
date of enactment of this Act, but only if the
Commission determines, in consultation with
appropriate public interest groups and interested individuals from the private sector, that
distributors of video programming have not,
by such date—
(A) established voluntary rules for
rating video programming that contains
sexual, violent, or other indecent material
about which parents should be informed
before it is displayed to children, and such
rules are acceptable to the Commission;
and
(B) agreed voluntarily to broadcast
signals that contain ratings of such programming.
(2) EFFECTIVE DATE OF MANUFACTURING
PROVISION.—In prescribing regulations to implement the amendment made by subsection
App. 43
(c), the Federal Communications Commission
shall, after consultation with the television
manufacturing industry, specify the effective
date for the applicability of the requirement
to the apparatus covered by such amendment,
which date shall not be less than two years after the date of enactment of this Act.
SEC. 552. TECHNOLOGY FUND.
It is the policy of the United States to encourage
broadcast television, cable, satellite, syndication, other
video programming, distributors, and relevant related
industries (in consultation with appropriate public interest groups and interested individuals from the private sector) to—
(1) establish a technology fund to encourage
television and electronics equipment manufacturers to facilitate the development of technology
which would empower parents to block programming they deem inappropriate for their children
and to encourage the availability thereof to low income parents;
(2) report to the viewing public on the status
of the development of affordable, easy to use blocking technology; and
(3) establish and promote effective procedures, standards, systems, advisories, or other
mechanisms for ensuring that users have easy and
complete access to the information necessary to effectively utilize blocking technology and to encourage the availability thereof to low income parents.
App. 44
Subtitle C—Judicial Review
SEC. 561. EXPEDITED REVIEW.
(a) THREE-JUDGE DISTRICT COURT HEARING.—
Notwithstanding any other provision of law, any civil
action challenging the constitutionality, on its face, of
this title or any amendment made by this title, or any
provision thereof, shall be heard by a district court of 3
judges convened pursuant to the provisions of section
2284 of title 28, United States Code.
(b) APPELLATE REVIEW.—Notwithstanding any
other provision of law, an interlocutory or final judgment, decree, or order of the court of 3 judges in
an action under subsection (a) holding this title or
an amendment made by this title, or any provision
thereof, unconstitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court. Any
such appeal shall be filed not more than 20 days after
entry of such judgment, decree, or order.
App. 45
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
WORD OF GOD FELLOWSHIP,
INC. D/B/A DAYSTAR TELEVISION NETWORK,
Index No.
Plaintiff,
COMPLAINT
v.
VIMEO, INC., VHX CORPORATION, AND LIVESTREAM, LLC,
Defendants.
Plaintiff Word of God Fellowship, Inc. d/b/a Daystar Television Network (“Daystar”), by and through
its attorneys, DAY PITNEY LLP and KELLY HART & HALLMAN, LLP (pro hac vice to be filed), as for its Complaint
against Defendants Vimeo, Inc., VHX Corporation, and
Livestream, LLC (collectively, the “Vimeo Defendants”),
respectfully alleges as follows:
NATURE OF THE ACTION
1. Daystar is a Christian-based television network. Daystar broadcasts its content, including original content, worldwide. As part of its offering, Daystar
provides its viewers with a streaming internet channel, where Daystar’s viewers across the globe can access and watch all of Daystar’s content on www.
daystar.tv. Or so it used to be. This lawsuit is about a
group of Defendants—the Vimeo Defendants—who believe they can dictate, with impunity, what Daystar
App. 46
may or may not publish and broadcast on its own website despite a written contract that governs the parties’
relationship.
2. Daystar, however, is not without recourse.
Daystar has a written contract with the Vimeo Defendants—a contract under which Daystar has paid substantial sums of money to make its content available
to viewers around the world. The Vimeo Defendants’
actions constitute a clear and utter breach of that contract, for which they must be held accountable.
3. Relevant here, part of Daystar’s content on
www.daystar.tv includes educational programming
regarding vaccines, including content pertaining to
the various risks associated with vaccines and the
undisputed role that aborted fetuses play in the development and creation of vaccines. Daystar’s vaccine
programming includes insight, analysis, and commentary from highly-notable and well-respected guests,
such as Robert F. Kennedy, Jr. The Vimeo Defendants,
of course, knew that Daystar’s content included vaccine programming when they solicited and lured Daystar away from its prior platform provider. At the time
the Vimeo Defendants solicited Daystar’s business,
Daystar was already streaming six programs regarding vaccines. It was not a secret.
4. Armed with such knowledge, the Vimeo Defendants nonetheless represented to Daystar that its
content was a good fit on the Vimeo platform. Indeed,
the Vimeo Defendants boasted about other Christianbased organizations that broadcast their content using
App. 47
the platform. The Vimeo Defendants further represented to Daystar that Daystar was an ideal, long-term
partner given Daystar’s content. These representations about “the good fit” and “ideal, long-term partner,” of course, were false, and the Vimeo Defendants
knew it. The Vimeo Defendants, however, made these
representations with one goal in mind: securing substantial subscription fees from Daystar.
5. In late July 2020, the Vimeo Defendants removed five of Daystar’s fourteen vaccine programs that
Daystar published and broadcast on its own website
(www.daystar.tv). They did so unilaterally and in
breach of their written contract with Daystar. Daystar,
therefore, brings this lawsuit to seek recourse for past
and future damages as a result of the Vimeo Defendants’ breach of contract.
PARTIES
6. Daystar is a corporation formed in the State of
Georgia. Daystar’s principal place of business is in
Bedford, Texas.
7. Upon information and belief, Vimeo, Inc.
(“Vimeo”) is a corporation formed in the State of Delaware, with its principal place of business in New York,
New York. Upon information and belief, Vimeo can be
served with process through its registered agent: CT
Corporation System, 28 Liberty Street, New York, New
York, 10005.
App. 48
8. Upon information and belief, VHX Corporation (“VHX”) is a corporation formed in the State of
Delaware, with its principal place of business is in New
York, New York. Upon information and belief, VHX can
be served with process through its registered agent: CT
Corporation System, 28 Liberty Street, New York, New
York 10005.
9. Upon information and belief, Livestream, LLC
(“Livestream”) is a limited liability company formed in
the State of Delaware, with its principal place of business is in New York, New York. Upon information and
belief, Livestream can be served with process through
its registered agent: CT Corporation System, 28 Liberty Street, New York, New York 10005.
JURISDICTION AND VENUE
10. Jurisdiction over the Vimeo Defendants is
proper because they hold their principal places of business in New York, New York.
11. Venue is proper pursuant to CPLR § 503(a)
& (c), as the Vimeo Defendants’ principal places of
business are located in New York County.
FACTS COMMON TO ALL CAUSES OF ACTION
A. DAYSTAR LAUNCHES A STREAMING INTERNET CHANNEL.
12. Daystar is an evangelical Christian-based
television network. Its mission is to “reach souls with the
good news of Jesus Christ.” Daystar’s programming is
App. 49
broadcast around the world and reaches over 1 billion
households. In addition to broadcast television, Daystar has sought out and utilized other media platforms
in an effort to reach as many viewers as possible.
13. In 2013, Daystar sought to develop a platform that allowed its viewers to access (i) a livestreaming internet channel; and (ii) all of Daystar’s
programming on an on-demand basis. To that end,
Daystar entered into a relationship with Brightcove, a
software company with an online streaming video platform. Working with Brightcove, Daystar accomplished
its goal of creating a live-streaming channel that allowed its viewers to watch Daystar’s programming ondemand over the internet. Daystar spent substantial
amounts of time and resources to create its platform.
14. Part of Daystar’s content—including original
programming content—includes educational programming regarding vaccines, including content pertaining
to the various risks associated with vaccines and the
role that aborted fetuses play in the development and
creation of vaccines. Daystar’s vaccine programming
includes insight, analysis, and commentary from highlynotable and well-respected guests, such as Robert F.
Kennedy, Jr. Daystar broadcasts the content to inform
and educate its viewers about how vaccines are tested
and manufactured, as well as certain risks that can be
associated with vaccinations.
15. During the time period that Daystar utilized
the Brightcove platform, its vaccine related programming included: (i) Vaxxed—The Movie; (ii) Vaxxed—
App. 50
Follow-up; (iii) Vaccinations Exposed Pt. 1; (iv) Vaccinations Exposed Pt. 2; (v) a program featuring Del
Bigtree, Polley Tommey, and Ryan and Julie Sadler;
and (vi) a program featuring Polly Tommey, Sheila Ealey, and Joel and Nina Schmidgall. This programming
is highly factual and includes individuals’ personal
accounts of their experiences with vaccines and any effects they personally encountered in connection therewith. Daystar’s vaccine-related content represents an
incredibly important part of its programming because
Daystar believes it has a faith-based duty to inform
Christians about the manner in which vaccinations are
developed (e.g., in part, from aborted fetuses) and risks
associated with them. Daystar later expanded its vaccination-related programming to include fourteen (14)
programs.
B. VIMEO SOLICITS AND PROCURES DAYSTAR’S BUSINESS.
16. Vimeo is a video hosting, sharing and services platform. In many respects, Vimeo is similar to
YouTube. It is a platform that allows its users to upload video content to its website that can then be accessed and viewed by other users. However, unlike
YouTube, Vimeo does not allow companies to advertise
on its platform. Consequently, to generate revenue,
Vimeo requires its users to pay a nominal fee (at a
baseline rate of $7.00/month) to maintain an account.
Vimeo has an estimated 150 million users with individual accounts.
App. 51
17. For users that require capability beyond
Vimeo’s individual plans, Vimeo offers an Enterprise
Plan. The services offered vis-a-vis the Enterprise Plan
are called “OTT Subscription Services” (the “OTT Services”), which stands for “over-the-top” subscription
services. The OTT Services are provided by VHX1 and
include the ability to live-stream content (including a
full interne channel) to an unlimited set of viewers and
to provide content on an on-demand basis. In the event
that a user subscribes to an Enterprise Plan, Vimeo
also offers a feature whereby a viewer simply visits the
user’s regular website or self-designated domain name
to access the content.
18. As part of its operations, Vimeo has secured
the business of other Christian-based organizations.
Seeking to grow its client base, the Vimeo Defendants
began soliciting Daystar’s business in August 2019. In
connection with this solicitation, the Vimeo Defendants and Daystar held meetings at Daystar’s headquarters in Bedford, Texas and via video-conference.
For the Vimeo Defendants, the meetings were designed
to convince Daystar that it should subscribe to the
OTT Services because, among other things, those services provide better functionality than Brightcove’s
platform. For Daystar, the meetings were designed to
see how Vimeo’s platform/interface worked, as well as
to determine whether the economics made sense on its
end.
Upon information and belief, VHX is a wholly-owned Vimeo
subsidiary.
1
App. 52
19. Throughout the course of these meetings,
the Vimeo Defendants’ representatives represented to
Daystar that Daystar would make an ideal long-term
strategic partner. The Vimeo Defendants further represented to Daystar that its content was a good fit on
the Vimeo platform. At no point did the Vimeo Defendants advise Daystar (i) that they had any objection to
Daystar’s vaccine programming; or (ii) that any of its
content, including the vaccine programming, violated
Vimeo’s Terms of Service to the extent applicable.
20. Relying on these representations, Daystar
agreed to transition its business to the Vimeo Defendants and to subscribe to the OTT Services. On October
7, 2019, Daystar and the Vimeo Defendants agreed to
an Order Form (the “Order Form”) that sets forth the
terms of the parties’ written agreement. As set forth in
the Order Form, VHX agreed to provide the OTT Services to Daystar, including (i) a 24/7 live-stream channel; (ii) “video hosting and delivery”; and (iii) video ondemand features. In exchange, Daystar agreed to pay
the Vimeo Defendants $236,000 each year, which Daystar has paid for the first year. The parties further
agreed to an initial two-year term. In line with the
Vimeo Defendants’ representations that Daystar’s content would be a good fit on their platform, the Order
Form does not place any restrictions on the content
that Daystar can broadcast on its live-streaming channel or through its on-demand feature.
21. After the parties agreed to the Order Form,
Daystar actively worked to launch its streaming channel and on-demand content on the Vimeo Defendants’
App. 53
platform. In doing so, Daystar obtained the domain
name “www.daystar.tv” to host its streaming channel
and on-demand content. In December 2019, Daystar
launched its streaming channel and on-demand content using the Vimeo Defendants’ platform and made
it accessible online via www.daystar.tv. None of Daystar’s content is published or is otherwise accessible on
Vimeo’s website. In other words, Daystar is the sole
publisher of its content.
C. VIMEO DEMANDS THAT DAYSTAR REMOVE THE VACCINE PROGRAMMING.
22. Until recently, Daystar was pleased with its
streaming channel. During that time period, the Vimeo
Defendants never contended that any of Daystar’s content was objectionable or violated any purported Terms
of Service.
23. On June 23, 2020, however, Vimeo contacted
Daystar and advised Daystar that it intended to remove the vaccination-related programming because it,
purportedly, violated Vimeo’s individual user Terms of
Service. According to Vimeo, the vaccine programming
violated its Terms of Service because it supposedly
“makes false or misleading claims about vaccine
safety.” Daystar was surprised (to say the least) that
Vimeo took this position for several reasons. First,
Vimeo actively solicited Daystar and convinced Daystar to transition its business from Brightcove’s platform to Vimeo’s. When the Vimeo Defendants engaged
in these solicitation efforts, six of Daystar’s vaccination
App. 54
programs were streamed via the Brightcove platform,
and the Vimeo Defendants never indicated that they
objected to any of Daystar’s programming.
24. Second, the Order Form does not place any
restrictions on what content Daystar can publish or
broadcast, and the vaccination programming was only
published on Daystar’s website. It cannot be accessed
on Vimeo’s website. Understandably, Daystar did not
believe that Vimeo would (nor legally could) attempt to
regulate the content Daystar publishes on its own website. Yet, here we are.
25. And third, contrary to Vimeo’s position, the
vaccination programming does not make any false
and/or misleading claims about vaccination safety. For
example, Vaxxed is a documentary film that follows a
former Centers for Disease Control (the “CDC”) senior
scientist’s investigation that the CDC manipulated
and destroyed data regarding an important study linking autism to the measles, mumps and rubella (“MMR”)
vaccine. It is simply the scientist’s personal account of
what happened. Other portions of the movie set forth
individuals’ personal accounts of effects they experienced from the MMR vaccine.
26. Taking all of these considerations into account,
Daystar objected to Vimeo’s position and engaged in
discussions with Vimeo. Through the discussions,
Vimeo took the position that its internal “trust and
safety team” determined that any content regarding
vaccinations violated the individual user (i.e., those
whose content is published on Vimeo’s website, unlike
App. 55
Daystar) Terms of Service. Vimeo’s position is in stark
contrast to the written Terms of Service (even if applicable, which Daystar denies), as the Terms of Service
only prohibit content that contains false or misleading
claims about vaccination safety. On information and
belief, Vimeo does not have a medical professional on
staff or on its so-called “trust and safety team” who is
qualified to assess whether Daystar’s programming
makes false or misleading claims about vaccination
safety. Contrary to the “trust and safety team’s” unilateral and conclusory assertion, the vaccine programming does not make any false or misleading claims
about vaccination safety.
27. Ignoring its contractual obligations under
the Order Form, Vimeo removed five of Daystar’s vaccination programs on July 24, 2020. The five programs
that Vimeo removed are: (i) a program featuring Robert F. Kennedy, Jr., Del Bigtree2 and Cedric Pisegna;
(ii) Vaccinations Exposed Pt. 1; (iii) Vaccinations Exposed Pt. 2; (iv) Vaxxed—The Movie; and (v) Vaxxed—
Follow-up (collectively, the “Vaccine Programming”).
The Vimeo Defendants’ removal of the Vaccine Programming (i) represents a clear breach of the Order
Form; and (ii) was grossly negligent and evinces a reckless disregard for Daystar’s rights, in that (on information and belief ) the Vimeo Defendants did not even
have a medical professional independently determine
whether or not the Vaccine Programming made false
and/or misleading claims regarding vaccine safety. At
Mr. Bigtree is the Chief Executive Officer of Informed Consent Action Group.
2
App. 56
best, the Vimeo Defendants’ actions represent an intentional breach of the Order Form. At worst, the
Vimeo Defendants’ actions are the result of unabashed
and intentional censorship of content Daystar published and broadcast on its own website. Daystar
brings this lawsuit to recover the damages it has sustained (and will sustain) as a result of the Vimeo Defendants’ actions.
AS AND FOR A FIRST CAUSE OF ACTION
FOR BREACH OF CONTRACT
28. Daystar incorporates by reference and re-alleges in full the preceding paragraphs of this Complaint.
29. There is a valid and enforceable agreement
between the parties, namely the Order Form. Daystar
fully performed its obligations under the Order Form
by making all payments that have become due thereunder. The Vimeo Defendants, on the other hand,
breached the Order Form by removing the Vaccine Programming from Daystar’s streaming channel and disallowing viewers from accessing the programming ondemand. The Vimeo Defendants’ actions represent a
clear and unequivocal breach of the Order Form. Moreover, the Vimeo Defendants’ breach of the Order Form
was grossly negligent and demonstrates a reckless disregard of Daystar’s rights.
30. As a proximate and foreseeable result of the
Vimeo Defendants’ breach of the Order Form, Daystar
has been damaged, for which sums Daystar hereby
App. 57
sues, in an amount that exceeds the jurisdictional limits of this Court. Daystar seeks its actual, special, and
consequential damages it has sustained, including
out-of-pocket and benefit-of-the-bargain damages, plus
pre- and post-judgment interest at the highest rate allowed by applicable law.
AS AND FOR A SECOND CAUSE OF ACTION
FOR UNJUST ENRICHMENT
31. Daystar incorporates by reference and realleges in full the preceding paragraphs of this Complaint.
32. By their wrongful acts and omissions, the
Vimeo Defendants were unjustly enriched at the expense of and to the detriment of Daystar.
33. As set forth above, the Vimeo Defendants retained the economic benefit of substantial payments
made by Daystar.
34. The Vimeo Defendants were enriched at Daystar’s expense insofar as, inter alia, the Vimeo Defendants wrongfully removed the Vaccine Programming,
thereby depriving Daystar of the benefit of its payments made to the Vimeo Defendants.
35. It is against equity and good conscience to
permit the Vimeo Defendants to retain the benefit of
the payments made by Daystar to the Vimeo Defendants.
App. 58
36. Daystar has been damaged and is entitled to
recover judgment from the Vimeo Defendants in the
amount of the payments wrongfully retained by the
Vimeo Defendants.
CONDITIONS PRECEDENT
37. All conditions precedent to the recovery sought
herein have been performed or have been waived.
WHEREFORE, Daystar respectfully demands
judgment as follows:
a.
Awarding Daystar monetary damages on the
First and Second Causes of Action in amounts
to be determined at trial representing its actual, special and consequential damages, including out-of-pocket and/or benefit-of-thebargain damages;
b.
Granting rescission of the Order Form;
c.
Awarding interest at the maximum rate allowed by applicable law;
d.
Awarding Daystar its costs and expenses,
including attorneys’ fees, incurred in this action; and
e.
Granting such other and further relief,
whether at law or in equity, as the Court
deems is just and proper.
App. 59
Dated: New York, New York DAY PITNEY LLP
August 11, 2020
By: /s/Alfred W.J. Marks
Alfred W.J. Marks
Gregory R. Bruno
605 Third Avenue, 31st Floor
New York, New York 10036
(212) 297-5800 (phone)
(718) 764-4350 (fax)
awjmarks@daypitney.com
gbruno@daypitney.com
–and–
Michael D. Anderson
Caleb B. Bulls
KELLY HART &
HALLMAN, LLP
201 Main Street, Suite 2500
Fort Worth, Texas 76102
(817) 332-2500 (phone)
(817) 878-9280 (fax)
michael.anderson@
kellyhart.com
caleb.bulls@kellyhart.com
Attorneys for Plaintiff
App. 60
EXHIBIT B TO CHEAH AFFIRMATION ORDER FORM OF VIMEO, INC.,
DATED OCTOBER 7, 2019 [55-56]
ORDER FORM
[LOGO]
Customer Name Daystar Television Network
Legal Name
WORD OF GOD FELLOWSHIP,
INCORPORATED
Vimeo OTT ID
87665
Contact Name
Jonathan Weiss
Contact Email
jonathan.weiss@daystar.com
Phone
+1 415-717-2665
Vimeo, Inc.
Livestream LLC, a Vimeo operating business
VHX Corporation, a Vimeo operating business
555 West 18th Street
New York, New York 10011
Billing inquiries: ar@vimeo.com
Bill To Name
Jonathan Weiss
Billing Email:
Additional Billing Jonathan.Weiss@daystar.com
Emails
Bill To
3901 Texas 121
Bedford, TX 76021
United States
Payment Schedule Quarterly
Payment Terms: First invoice is payable net 7.
Each subsequent [Illegible] 30.
Product and Services Purchased
Product
Product Description
Livestream Live Linear (24/7)
Channel
Product Family
OTT Subscription
Services
Vimeo OTT Branded 6 App
Suite
OTT Subscription
Services
1.00
OTT Subscription
Services
1.00 $576,000.00
$0.00
App. 61
Vimeo OTT
Enterprise
Includes IOS, Android, Roku,
tvOS, Amazon Fire TV, and
Android TV Apps
- Dedicated account manager
- Onboarding and migration
support (third-party ingest costs
not included)
- Content management system
- Video hosting and delivery
- Email-based end-user customer
support for transactions
processed by Vimeo
- Data analytics via online
dashboard
Quantity Total Price
1.00
$0.00
Subtotal
Subtotal
Grand Total
$576,000.00
$576,000.00
Vimeo will use commercially reasonable efforts to provide Customer with a templated website
and the above apps for the Channel that can be published by January 1, 2020. Customer
understands and agrees that Vimeo has no control over third- party app platforms and
Customer must fully cooperate with Vimeo and provide all required assets and approvals to
Vimeo on a timely basis; any delays associated with third-party approvals or Customer
cooperation shall not be attributable to Vimeo.
OTT Subscription Services | Provided by VHX Corporation
OTT Service
FVOD Live
Start Date
Bandwidth Cap
8,000,000.00
Recurring Date
(GB/Yr)
Initial Service Period
Bandwidth Overage
$0.030
(months)
Fee (per GB over
Video Uploading/
Cap)
Transcoding (hrs/yr)
Video Uploading/
Transcoding
Overage Fee
10/4/2019
$288,000.00
24
2,000
$200 per 50 hours over the Cap
App. 62
Terms
Subscription services will start on the Start Date or
when both parties have executed this Order Form,
whichever is later, and continue for the Initial Service
Period. Subscription services renew for successive 12month periods until either party provides 30 days’
written notice of non-renewal before the start of a renewal period. Prices may be increased upon the start
of each renewal period by a maximum of 5%. All fees
are non-refundable. Customer is solely responsible for
any taxes that may apply. This Order Form incorporates by reference Vimeo’s Enterprise Terms, available
at httos://vimeo.com/enteroriseterms.
/s/ Jonathan Weiss
Customer Signature
Jonathan Weiss
Name
I have the authority to
bind WORD OF GOD
FELLOWSHIP, INCORPORATED to the terms
of this Order Form
/s/ Steven Vineyard
Vimeo Signature
Steven Vineyard
Name
CFO
Business Title
10/7/2019 | 9:58 EDT
Date
10/4/2019 | 1:59 PDT
Date
/s/ MV
Sales Operations
/s/ JF
Legal Approval
App. 63
EXHIBIT C TO CHEAH AFFIRMATION VIME0 ENTERPRISE TERMS, UPDATED ON
MARCH 12, 2019 [57-59]
Vimeo Enterprise Terms
Last Updated: March 12, 2019
These Vimeo Enterprise Terms (“Enterprise
Terms”) apply to individually-negotiated order forms
(“Order Forms”) executed by Vimeo, Inc., on behalf of
Itself or its subsidiaries (“Vimeo”, “we”, “us”, or
“our”), and you. These Enterprise Terms shall not apply to “self-service” purchases (i.e., those made directly
from our websites without individual negotiation).
1. Applicable Online Terms
By signing the Order Form, you are entering into a
binding agreement with the Vimeo entity below that
will provide the product or service you have ordered:
Product or Vimeo Entity Applicable Online
Service
Terms of Service
Vimeo
Vimeo, Inc.
Subscription
Services
https://vimeo.com/terms
OTT
VHX
Subscription Corporation
Services
https://www.vhx.tv/
admin/tos
Live
Livestream
Subscription LLC
Services
https:/livestream.com/
legal/terms
App. 64
Livestream Livestream
Hardware
LLC
(e.g., Mevo,
Broadcaster,
Studio)
https://livestream.com/
legal/hardware-warranty
Live
Production
Services
https://livestream.com/
legal/production-services
Livestream
LLC
These Enterprise Terms incorporate by reference the
online terms applicable to the product or service you
have purchased, as shown above. To the extent there is
any inconsistency between any individual document,
the following documents shall control, in this order:
(a) the Order Form; (b) these Enterprise Terms, and (c)
the applicable online terms of service (collectively, the
“Agreement”).
2. Services
During the Term (as defined below), Vimeo will provide
you with the products and services that you have ordered in the Order Form.
Subscription services will be deemed made available
on the Start Date (stated in the Order Form), regardless of when you start using all or part of the services,
and for the duration of the Initial Service Period
(stated in the Order Form). You may need to create an
account, upload assets, or provide certain information
in order to start using the services.
App. 65
Applications for third-party platforms (“apps”) will be
developed after the Start Date and after you have provided all required assets and approvals. Apps may
need to be approved by a third-party platform or store,
which may have content guidelines that differ from
Vimeo’s. You will remain responsible for fees if any app
is rejected based upon your content or conduct.
3. Subscription Term
If you have ordered subscription services, the Agreement begins on the Start Date and continues for the
Initial Service Period.
Thereafter, your Agreement will automatically renew
for successive 12-month periods (each a “Renewal Period”) unless either party provides at least thirty (30)
days’ written notice of termination before a Renewal
Period begins. The Initial Service Period and any Renewal Period(s) shall be referred to as the “Term.”
4. Termination
We may terminate the Agreement if you fail to cure
any breach thereof within fifteen (15) days of written
notice of the breach. We may remove any content pursuant to our copyright policies or our acceptable use
policies. We will terminate accounts of repeat infringers in appropriate circumstances.
In the event of termination for breach, (a) you will continue to be responsible for all fees (which shall be accelerated if unpaid); (b) any revenue payable to you
App. 66
shall be forfeited; (c) you may not create or use a selfservice account with us; and (d) we may terminate any
other agreements with you.
5. Prices and Fees
You will pay the amounts set forth in your Order Form
plus any applicable taxes. If the Order Form does not
list any price for an ordered product or service, you will
pay the prices displayed on our website. If the Order
Form lists zero as the price, this indicates that the
product or service is bundled with another paid product or service and shall not be construed as a
standalone commitment to provide a free product or
service. At the beginning of a Renewal Period (if any),
we may, upon notice, increase prices by up to 5% annually.
Sales and value-added taxes may apply to all purchases. You are solely responsible for paying such taxes
or demonstrating that you are exempt.
All paid amounts are non-refundable. Any refund policy set forth on our website or marketing materials
(which apply to self-serve accounts) shall not apply.
6. Revenue and Advertising Inventory
Certain of our services may involve payment of revenue received by Vimeo for the sale of your content to
end users. In such cases, we will pay you gross revenue
received from end users from sales of your content, less
taxes, refunds, chargebacks, Vimeo’s fees, and any
App. 67
other permitted deductions. Payments will be made
within thirty (30) days after the end of each month.
Vimeo may withhold amounts from any payment due
to you that Vimeo determines in good faith must be
withheld pursuant to U.S. tax law. Vimeo may file reports concerning income with any taxing authority, including the U.S. Internal Revenue Service.
Certain of our services may allow Vimeo or you (or
both) to sell advertising inventory in connection with
content that you submit. You shall ensure that any advertising inventory sold or delivered by you complies
with the Agreement, including our acceptable use policies.
7. Payment Terms
You must pay all fees using a valid payment method or,
if we permit, by invoice. All invoices are payable within
thirty (30) days after the invoice date without offsets
or deductions of any kind. Fixed fees may be invoiced
in advance at the start of each period. Variable fees
(e.g., overage fees, transactional fees, etc.) will be invoiced on a monthly basis after the end of each month.
Certain types of fees may be paid through systems we
provide without an invoice.
In the event of late payments or nonpayment: (a) we
may deduct amounts owed from any revenue owed to
you until all fees are paid; (b) we may suspend or limit
service to you until all fees are paid; (c) we may charge
interest of up to 1.5% per month or the maximum
App. 68
allowable by law (whichever is lower) on past-due
amounts; and (d) you agree to pay our reasonable costs
of collection (including court filing fees and attorneys’
fees).
Invoiced amounts will be deemed accounts stated and
may not be disputed after six (6) months after the invoice date. No endorsement or statement on any check
or payment or accompanying document will be construed as an accord or satisfaction. All amounts are expressed, and must be paid, in U.S. dollars.
8. General
You grant us permission to use your name and logo on
our customers lists, marketing pitch-books, and investor materials. Neither party shall issue any press release about their relationship without the prior
written consent of the other.
The Agreement constitutes the entire agreement and
understanding between us as to the subject matter
thereof and supersedes all prior agreements and understandings. No additional terms set forth in any subsequent “purchase order” will have any binding effect.
The Order Form may not be modified except in a writing signed by each party. Vimeo may modify these Enterprise Terms or any applicable online terms of
service by posting a revised set of terms on its website,
provided that (a) any changes will apply prospectively;
and (b) your consent shall be required for any changes
that materially diminish your rights.
App. 69
EXHIBIT D TO CHEAH AFFIRMATION VIME0 TERMS OF SERVICE AGREEMENT,
UPDATED ON JUNE 26, 2019 [60-68]
Vimeo Terms of Service Agreement
Last Updated: June 26, 2019
This Vimeo Terms of Service Agreement (the
“Agreement” or “Terms of Service”) is made between Vimeo, Inc. (“Vimeo,” “we,” “us,” or “our”) and
you, our customer (“you” or “your”). Vimeo provides
online video hosting and sharing services through our
owned-and-operated websites, applications, and embeddable video players (collectively, the “Services”).
This Agreement governs your use of our Services.
Content
1.
Acceptance
2.
Our Services
3.
Accounts
4.
Subscription Plans
5.
Acceptable Use Policy
6.
Licenses Granted by You
7.
Your Obligations
8.
Term and Termination
9.
Disclaimers
10. Limitation of Liability
11. General Provisions
App. 70
1. Acceptance
By creating an account, viewing videos, making a purchase, downloading our software, or otherwise visiting
or using our Services, you accept this Agreement and
consent to contract with us electronically.
If you are an entity other than a natural person, the
person who registers the account or otherwise uses our
Services must have the authority to bind the entity. In
this context, “you” means both the entity and each person who is authorized to access the account.
We may update this Agreement by posting a revised
version on our website. By continuing to use our Services, you accept any revised Agreement.
This Agreement includes our Privacy Policy and the
addenda listed in Section 11 below. Please review our
Privacy Policy to learn about the information we collect
from you, how we use it, and with whom we share it.
2. Our Services
Service License: Subject to the terms hereof, we
grant you access to our Services. This includes the
right to:
•
Stream videos that you have the right to view;
•
Upload, store, and/or live stream videos, subject to your plan;
•
Embed our embeddable video player on thirdparty websites; and
App. 71
•
Use all related functionality that we may provide.
The features available to you will depend on your plan.
We may change features from time to time. If you have
a paid account, we commit to providing the core video
hosting and streaming features of your plan (including
the bandwidth and storage capabilities stated at the
time of purchase) during your current service period.
We may charge for excessive bandwidth use when: (1)
plays occur on third-party sites without using our embeddable video player; (2) plays occur within thirdparty apps (e.g., mobile or connected TV apps); (3) you
monetize Vimeo-hosted videos using a third-party payment solution; or (4) you use our video player with a
third-party advertising solution.
Transactions: We may offer digital goods for sale.
Purchases of Vimeo On Demand videos are governed
by our Vimeo On Demand Viewer Agreement. Purchases of Vimeo Stock footage and licenses are governed by our Vimeo Stock License Agreement.
Monetization: We may allow you to sell digital goods
or earn money through advertising. Your sales of videos are governed by our Seller Addendum.
Downloadable Software: We may offer applications
for devices (“Apps”) directly or through third-party
stores. Apps are governed by our App Addendum.
Developer Tools: We may offer application programming interfaces (“APIs”) that allow developers to build
applications connected to our Services. Our APIs and
App. 72
related documentation are governed by our API License Addendum.
Enterprise Services: We may offer Services pursuant to an individually-negotiated agreement. Enterprise services are governed by our Enterprise Terms.
3. Accounts
Registration: You may create an account to use certain features we offer (e.g., uploading or live streaming
videos). To do so, you must provide an email address.
You consent to receive notices from Vimeo at this email
address.
Organizational Accounts: Corporate, governmental,
and other organizational users must publicly display
the legal name of their entity on their public account
profile. If you are a government entity in the U.S., our
Government Entity Addendum applies.
Age Requirements: You must be at least 13 years old
to create an account. If you reside in the European Union, you must be at least 16 years old. If you wish to
use the Services for a commercial purpose, you must
be at least 18 years old. If you are at least the requisite
age, but are still a minor in your jurisdiction, you must
have your parent or legal guardian’s permission.
Please have that person read this Agreement with you
and consent to it before proceeding.
Parents and Guardians: By granting your child permission, you agree to the terms of this Agreement on
behalf of your child. You are responsible for monitoring
App. 73
and supervising your child’s usage. If your child is either under the applicable age or does not have your
permission, please contact us immediately so that we
can disable access.
Team Members: Certain subscription plans may allow you to grant other registered users (“team members”) access to the account. Both you and each team
member is deemed a party to this Agreement. You are
responsible for the actions of your team members and
must monitor their access and usage.
Account Security: You are responsible for all activity
that occurs under your account, including unauthorized activity. You must safeguard the confidentiality of
your account credentials. If you are using a computer
that others have access to, you must log out of your account after each session. If you become aware of unauthorized access to your account, you must change your
password and notify us immediately.
4. Subscription Plans
Plan Types: We offer free (Basic) memberships and
paid subscriptions that allow you to upload and share
video content. You may purchase a “Self-Serve” plan
(you sign up and pay online) or an “Enterprise” plan
(you work with a sales representative and execute an
individualized agreement). Advertised prices and features may change.
Basic and Plus Accounts: Vimeo Basic (free) members and Plus subscribers may not: (a) use the Services
App. 74
for commercial purposes unless they are film professionals or small film businesses; or (b) submit videos
that they did not create or play a material part in creating.
Fees: You must pay all fees (plus any taxes) during
your subscription period and any renewal periods. Our
fees may include a fixed monthly or annual fee plus
variable fees for transactions or usage.
Free trials and Discounts: We may offer free-trial or
discounted subscriptions. When a free-trial period
ends, your paid subscription begins (unless you have
cancelled) and you must pay the full monthly or annual
fee. If we provide a discount for the first subscription
period, you must pay the discounted fee; in any renewal, you must pay the full fee.
Refund Policy: Subject to the terms hereof, SelfServe subscribers who purchase plans directly from
Vimeo may cancel and receive a full refund of their initial purchase with thirty (30) days after purchasing
an annual plan and five (5) days after purchasing a
monthly plan. Our refund policy does not apply to:
•
In-app purchases;
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Subscription renewals or migrations to other
plans;
•
Fees other than annual or monthly subscription fees;
•
Requests made after the specified periods;
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•
Customers who have breached this Agreement or whose accounts were terminated in
accordance with our Copyright Policy;
•
Customers who joined using a promotion that
expressly disclaimed our refund policy;
•
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dispute; or
•
Enterprise plan customers.
Automatic Renewal: To the extent permitted by
applicable law, subscriptions automatically renew at the end of each subscription period unless cancelled beforehand. Monthly plans renew
for 30-day periods. Annual plans renew for oneyear periods. You must pay the annual or monthly
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Unused storage, bandwidth, and other usage limits do
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How to Decline Renewal: Self-Serve customers
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Any opt-out or notice of non-renewal will not affect the
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Lapse Policy: When a subscription ends, the account
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status. You are responsible for archiving your content.
Vimeo shall not be responsible for the loss of any
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content. We may publish additional guidelines regarding the treatment of lapsed subscriptions. These guidelines describe current practices only and shall not
require Vimeo to provide any level of post-subscription
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In-App Purchase: We may allow you to purchase subscriptions within Apps. When you make such “in-app”
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to the app platform.
5. Acceptable Use Policy
We may allow you to upload, live stream, submit, or
publish (collectively, to “submit”) content such as videos, recordings, images, and text (collectively, “content”). You must ensure that your content, and your
conduct, complies with the Acceptable Use Policy set
forth in this Section 5. Vimeo may (but is not obligated to) monitor your account, content, and conduct,
regardless of your privacy settings. Vimeo may take all
appropriate actions to enforce its rights including removing specific videos or suspending or removing your
account.
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5.1 Copyright Policy
You may only upload content that you have the right
to upload and share. Copyright owners may send
Vimeo a takedown notice as stated in our Copyright
Policy if they believe Vimeo is hosting infringing materials. We will, in appropriate circumstances, terminate
the accounts of persons who repeatedly infringe.
5.2 Content Restrictions
You may not submit any content that:
•
Infringes any third party’s copyrights or other
rights (e.g., trademark, privacy rights, etc.);
•
Is sexually explicit (e.g., pornography) or proposes a transaction of a sexual nature;
•
Is hateful, defamatory, or discriminatory or
incites hatred against any individual or
group;
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Exploits minors;
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Provides instructions on how to assemble explosive/incendiary devices or homemade/improvised firearms;
•
Depicts animal cruelty or extreme violence towards animals;
•
Promotes fraudulent or dubious business
schemes or proposes an unlawful transaction;
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•
Makes false or misleading claims about vaccination safety;
•
Claims that mass tragedies are hoaxes or
false flag operations;
•
Depicts or encourages self-harm; or
•
Violates any applicable law.
Please see the Vimeo Guidelines for guidance on how
we interpret these terms.
5.3 Code of Conduct
In using our Services, you may not:
•
Use an offensive screen name (e.g., explicit
language) or avatar (e.g., containing nudity);
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Act in a deceptive manner or impersonate any
person or organization;
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Harass or stalk any person;
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Harm or exploit minors;
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Distribute “spam” in any form or use misleading metadata;
•
Collect personal information about others;
•
Access another’s account without permission;
•
Engage in any unlawful activity;
•
Embed our video player on or provide links to
sites that contain content prohibited by Section 5.2; or
•
Cause or encourage others to do any of the
above.
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5.4 Prohibited Technical Measures
You will not:
•
Except as authorized by law or as permitted
by us: scrape, reproduce, redistribute, create
derivative works from, decompile, reverse engineer, alter, archive, or disassemble any part
of our Services; or attempt to circumvent any
of our security, rate-limiting, filtering, or digital rights management measures;
•
Submit any malicious program, script, or
code;
•
Submit an unreasonable number of requests
to our servers; or
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Take any other actions to manipulate, interfere with, or damage our Services.
5.5 Restricted Users
You may not create an account if you are a member of
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or services from us if you reside in a country subject to
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the U.S. Department of the Treasury.
5.6 Accessibility and Ratings
We provide means to allow you to include closed captioning in your videos. If required by applicable law,
you must provide closed captioning in your videos.
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We may allow you to filter videos based upon their
user-defined content rating. We cannot guarantee that
videos will be appropriately rated by others. You must
rate your videos appropriately.
6. Licenses Granted by You
As between you and Vimeo, you own and will retain
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and stream your content, you grant Vimeo the permissions set forth below.
6.1 Your Video Content
By submitting a video, you grant Vimeo permission to:
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Stream the video to end users;
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Embed the video on third-party websites;
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Make the video available for download;
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Transcode the video (create compressed versions of your video file that are optimized for
streaming); and
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Generate stills (i.e., “thumbnails”) from your
video to represent it (if you have not selected
one).
If you have enabled a video privacy setting or disabled
downloading or embedding, we will limit distribution
of your video pursuant to your selection. By enabling
access to your video to any third party, you grant each
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such person permission to stream (and/or download or
embed, as applicable) your video. For the purposes of
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The license period begins when you submit the video
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limited period of time in case you wish to restore it; (b)
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6.2 Account Profile
You grant Vimeo permission to use your name, likeness, biography, trademarks, logos, or other identifiers
used by you in your account profile for the purpose of
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permission by deleting your account.
6.3 Other Content; Feedback
Content that is not covered by the licenses set forth in
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6.3 (e.g., text you submit in comments). You grant
Vimeo a perpetual and irrevocable right and license to
copy, transmit, distribute, publicly perform, and display such content through online means in connection
with our Services. If you make suggestions to Vimeo on
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improving or products or services, Vimeo may use your
suggestions without any compensation to you.
6.4 Scope of Licenses
All licenses granted by you in this Section 6: (a) are
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and licenses to allow us to exercise our rights and perform our obligations. By granting these licenses, you
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Nothing in this Agreement shall be deemed a license
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term by Vimeo hereof shall give rise to, at most, a claim
for breach of contract only. All licenses granted herein
are in addition to any other licenses that you may
grant (e.g., a Creative Commons license).
7. Your Obligations
7.1 Representations and Warranties
For each piece of content that you submit to or through
Vimeo, you represent and warrant that:
•
You have the right to submit the content to
Vimeo and grant the licenses herein;
•
Vimeo will not need to obtain licenses from
any third party or pay royalties to any third
party with respect to the streaming or other
permitted distribution of the content;
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•
The content does not, and will not, infringe
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property rights and privacy rights; and
•
The content complies with this Agreement
and all applicable laws.
7.2 Indemnification
You will indemnify, defend, and hold harmless Vimeo
and its subsidiaries, parents, affiliates, directors, officers, employees, and agents, from and against all thirdparty actions arising from: (a) the content you submit
to or through the Services; and (b) allegations of actions or omissions by you that (regardless if proven)
would constitute a breach of this Agreement.
8. Term and Termination
This Agreement begins when you first use our Services
and continues so long as you use our Service or have
an account with us, whichever is longer. Paid accounts
will continue for the subscription period and will renew in accordance with Section 4 above. With respect
to Basic (free) memberships, Vimeo may terminate this
Agreement at any time by providing thirty (30) days’
written notice, and users may terminate at any time
by deleting their accounts.
If you breach this Agreement, Vimeo may, at its option:
(a) terminate this Agreement immediately, with or
without advance written notice; (b) suspend, delete, or
limit access to your account or any content within it;
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and (c) to the extent permitted by applicable law, retain
any amounts payable to you (which you forfeit). If
Vimeo deletes your account for breach, you may not reregister.
In the event of any termination or expiration, the following sections will survive: Section 7.2 (Indemnification), Section 9 (Disclaimers), Section 10
(Limitation of Liability), and Section 11 (General Provisions).
9. Disclaimers
VIMEO PROVIDES THE SERVICES ON AN “AS IS”
AND “AS AVAILABLE” BASIS. YOU USE THE SERVICES AT YOUR OWN RISK. You must provide your
own device and Internet access.
EXCEPT AS EXPRESSLY SET FORTH HEREIN,
AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, VIMEO DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS
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representations or warranties:
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That our Services, or any part thereof, will be
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all devices or browsers;
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Concerning any content submitted by our users;
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•
That any geo-filtering or digital rights management solution that we might offer will be
effective;
•
That our Services will meet your business or
professional needs;
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That we will continue to support any particular feature or maintain backwards compatibility with any third-party software or device;
or
•
Concerning any third-party websites and resources.
10. Limitation of Liability
TO THE EXTENT PERMITTED BY APPLICABLE
LAW: (A) VIMEO SHALL NOT BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING
DAMAGES FOR LOSS OF BUSINESS, PROFITS,
GOODWILL, DATA, OR OTHER INTANGIBLE
LOSSES; AND (B) VIMEO’S TOTAL LIABILITY TO
YOU, EXCEPT FOR VIMEO’S CONTRACTUAL PAYMENT OBLIGATIONS HEREUNDER (IF ANY),
SHALL NOT EXCEED THE AMOUNTS PAID BY
YOU TO VIMEO OVER THE TWELVE (12) MONTHS
PRECEDING YOUR CLAIM(S) OR ONE HUNDRED
DOLLARS (USD $100), WHICHEVER IS GREATER.
11. General Provisions
Choice of Law: This Agreement will be governed by
the laws of New York State and the United States of
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America (with respect to matters subject to federal jurisdiction such as copyright), without regard to principles of conflicts of law.
Choice of Venue; Jury Trial Waiver: Any action relating to this Agreement or your use of our Services
must be commenced in the state or federal courts located in New York County, New York State, United
States of America; you consent to the exclusive jurisdiction of those courts. IN ANY SUCH ACTION,
VIMEO AND YOU IRREVOCABLY WAIVE ANY
RIGHT TO A TRIAL BY JURY.
Reservation of Rights, Severability, Force
Majeure: Vimeo reserves all rights not expressly
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term will be limited or severed. Vimeo will not be liable
for any delay or failure caused by a force majeure
event.
Relationship: You and Vimeo are independent contractors of one another; neither party is an agent, partner, or joint venturer of the other. This Agreement
binds the parties and their successors, personal representatives, and assigns. You may not assign this
Agreement to any person whose account has been
terminated by Vimeo or who is prohibited from registering; any such assignment will be void.
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Third Parties: We may provide links to and integrations with websites operated by others. The website operator, not Vimeo, is solely responsible for the content
thereof, and your use of each such website will be subject to its terms of service. We may disable integrations
with any third party at any time, with or without notice. Except as expressly stated herein, nothing in this
Agreement confers any right on any third party.
Entire Agreement: This Agreement constitutes the
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prior understandings regarding the subject matter
hereof and may not be modified except in accordance
with Section 1 or in a document executed by authorized representatives of Vimeo. If you have a signed
agreement with Vimeo, any conflicting term of that
agreement will prevail over the terms hereof, but only
as to the subject matter of that agreement.
Addenda: This Agreement incorporates the following
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•
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•
Enterprise Terms
Notices: You must send any notices of a legal nature
to us by email or at:
Vimeo, Inc.
Attention: Legal Department
555 West 18th Street
New York, New York 10011
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EXHIBIT E TO CHEAH AFFIRMATION VIMEO BLOG TITLED “IMPORTANT
UPDATES TO OUR CONTENT GUIDELINES”
BY MICHAEL CHEAH, DATED JUNE 26, 2019
[69-74]
vimeo blog
VIMEO HQ
Important updates to our content guidelines
by Michael Cheah
At Vimeo, we’ve always celebrated responsible free
speech and creative expression. At the same time, we
don’t allow people to use our platform to spread hateful
ideologies.
Our world is changing, and, as an open video platform
with a global community, our guidelines must adapt to
reflect these realities. That’s why today we’re announcing a set of new policies that prohibit certain categories
of content that can cause material, real-world harms.
We’re also taking the opportunity to reinforce our
longstanding prohibitions against hate speech. More
on this below.
New policies
Beginning today, the following content will not be permitted on Vimeo:
1.
Content that falsely claims that mass tragedies
are hoaxes
2.
Content that depicts or encourages self-harm
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3.
Content that perpetuates false or misleading
claims about vaccine safety
Although these categories span very different topics,
they all have one thing in common: They have a strong
potential to cause harm. Content that falsely claims
that vaccines are unsafe is at the forefront of an unfolding public health crisis. Videos that insinuate that
mass tragedies, like Sandy Hook, are hoaxes, inherently defame victims and re-traumatize survivors. And
content that depicts or encourages self-harm—including videos that encourage people to participate in dangerous “challenges”—can lead vulnerable people to
take harmful, potentially irrevocable, actions.
Starting today, we are providing a 30-day grace period
for documentaries that contravene our policy on vaccination content so that creators can voluntarily remove those videos. At the end of the grace period, we
will begin removing anti-vaccination videos that haven’t been voluntarily removed. Videos that violate the
other two prohibitions will not be given any grace period.
Hateful and discriminatory speech
Vimeo has always been an open platform that supports
narratives that celebrate all cultures, races, religions,
and identities. At the same time, we’ve long banned
content that is “hateful, defamatory, or discriminatory
or incites hatred against any individual or group.” We
are not making any changes to this policy, but are
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taking the opportunity to explain how we enforce this
prohibition.
Content violates our anti-hate and anti-discrimination
policy when it (1) is directed to a group based upon personal characteristics, such as race, religion, gender,
and sexual orientation; (2) sends a message of inferiority; and (3) would be considered extremely offensive to
a reasonable person. Our definition covers, for example, videos that assert harmful stereotypes, claim racial superiority of one group over another, or suggest
that certain groups of people of a particular religion
are involved in far-flung conspiracies.
Vimeo’s moderation approach
Our rules and processes are designed to be applied
fairly, consistently and transparently. As always, context matters. When prohibited content appears in the
context of a news story or a narrative device in a dramatic work, we are likely to leave it up. If, however, the
overall driving message of the work is to perpetuate a
viewpoint that we have specifically banned, we will remove it. We will also consider a user’s speech outside
of Vimeo (such as social media platforms, blogs, or anywhere else their personal views are clearly represented) in making calls about intent and good faith.
As an open video platform, we have a responsibility to
thoughtfully consider the real world impact of content
hosted on our service, and to help our community navigate the new and existing guidelines. Our Support
and Trust & Safety teams are available around the
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clock to answer any questions you may have about getting the most out of Vimeo. You can contact them here.
Thank you for making Vimeo a supportive and creative
space to share your stories. We will continue to do our
part to keep it that way.
Posted on June 26, 2019
Tags: Vimeo HQ
Share your videos with the world.*
*Or just your team
Learn More ĺ
ABOUT THE AUTHOR
Michael Cheah
Michael Cheah is Vimeo’s General Counsel. He’s been
advising Vimeo on legal matters since late 2009.
Up next in Vimeo HQ
VIMEO HQ
Get out the vote with Vimeo
Every vote matters. That’s why we’re making sure
every member of the Vimeo community has the resources they need to make a difference.
App. 93
VIMEO HQ
Our Diversity, Equity & Inclusion update
We’re sharing our DE&I initiatives, workforce representation data, and what we’re focused on now and in
the future.
A letter from our CEO: Vimeo stands for racial
justice
We are making an honest commitment to do better.
Your inbox needs more Vimeo.
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emails from Vimeo and to our Privacy Policy.
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Made with Ɔ in NYC.
© 2020 Vimeo, Inc. All rights reserved. Terms, Privacy,
Copyright and Cookies.
App. 94
EXHIBIT F TO CHEAH AFFIRMATION VAXXED DESCRIPTION PAGE FROM
THE APPLE ITUNES STORE
iTunes Preview
App. 95
Vaxxed: from Cover-Up to Catastrophe
UNRATED
38% HD
CC
Documentary • 1 Hour 30 Minutes • 2016
In 2014, biologist Dr. Brian Hooker received a call from
a Senior Scientist at the U.S. Centers for Disease Control and Prevention (CDC) who led the agency’s 2004
study on the Measles-Mumps-Rubella (MMR) vaccine
and its link to autism. The scientist, Dr. William
Thompson, confessed that the CDC had omitted crucial
data in their final report that revealed a causal relationship between the MMR vaccine and autism. Over
several months, Or. Hooker records the phone calls
made to him by Dr. Thompson who provides the confidential data destroyed by his colleagues at the CDC.
Dr. Hooker enlists the help of Dr. Andrew Wakefield,
the British gastroenterologist falsely accused of starting the anti-vax movement when he first reported in
1998 that the MMR vaccine might cause autism. Wakefield directs this documentary examining the evidence
behind an appalling cover-up committed by the government agency charged with protecting the health of
American citizens. Interviews with pharmaceutical insiders, doctors, politicians, and parents of vaccine-injured children reveal an alarming deception that has
contributed to the skyrocketing increase of autism and
App. 96
potentially the most catastrophic epidemic of our lifetime.
Rent $4.99 / Buy $12.99
View in iTunes ĺ
App. 97
EXHIBIT G TO CHEAH AFFIRMATION VIMEO OTT VIEWER TERMS OF SERVICE
AGREEMENT, UPDATED ON APRIL 17, 2020
[76-83]
Vimeo OTT Viewer Terms of Service Agreement
Last updated: April 17th, 2020
This Vimeo OTT Viewer Terms of Service Agreement
(“Agreement”) is between you and Vimeo OTT Solutions, Inc. (for the purposes hereof, “Vimeo,” “we” or
“us”). The Agreement governs your use of the “Vimeo
OTT Service,” an online platform that allows consumers like you to view video programs (“Programs”) from
content owners and licensors (“Producers”) through
Producer-branded websites and applications that we
power.
Notice: Section 10 of this Agreement contains a mandatory ARBITRATION AGREEMENT. By using the
Vimeo OTT Service, you agree that any claims you may
have against Vimeo relating to the Vimeo OTT Service
must be ARBITRATED, and you waive the right to (1)
assert claims against Vimeo in court; (2) participate in
a class action; and (3) have a jury hear your case.
1. Acceptance
By creating an account, viewing videos, making a purchase, downloading Producer-branded applications
that we power, or otherwise visiting or using the Vimeo
OTT Service, you accept this Agreement and consent
to contract with us electronically.
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If you are an entity other than a natural person, the
person who registers the account or otherwise uses the
Vimeo OTT Service must have the authority to bind
the entity. In this context, “you” means both the entity
and each person who is authorized to access the account.
We may update this Agreement by posting a revised
version on our website. By continuing to use the Vimeo
OTT Service, you accept any revised Agreement.
You may terminate the Agreement at any time by deleting your account. We reserve the right to suspend or
terminate your account for your breach of the terms
hereof. If Vimeo deletes your account for breach, you
may not re-register. In the event of any termination or
expiration of the Agreement, the following sections will
survive: Section 7 (Disclaimers), Section 8 (Limitation
of Liability), Section 9 (Indemnification), Section 10
(Arbitration Agreement; Jury Waiver; Class Action
Waiver), and Section 11 (General Provisions).
2. Accounts
Registration: You must create an account to use certain features we offer (e.g., to view a Program). To do
so, you must provide an email address. By creating an
account, you agree to receive notices from Vimeo and
the Producers of the Programs you purchase at this
email address.
Age Requirements: You may not create an account if
you are younger than 16 years of age. By creating an
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account, you represent that you are at least 16 years of
age, and, to the extent required by law, you have the
permission of a parent or guardian to create an account and use the Vimeo OTT Service.
Parents and Guardians: By granting your child permission to use the Vimeo OTT Service through your
account, you agree and understand that you are responsible for monitoring and supervising your child’s
usage. If you believe your child is using your account
and does not have your permission, please contact us
immediately so that we can disable access.
Account Security: You are responsible for all activity
that occurs under your account, including unauthorized activity. You must safeguard the confidentiality of
your account credentials. If you are using a computer
that others have access to, you must log out of your account after each session. If you become aware of unauthorized access to your account, you must change your
password and notify us immediately.
3. Privacy
Please review our Privacy Policy to learn about the information we collect from you when you use the Vimeo
OTT Service, how we use it, and with whom we share
it.
By creating an account, you agree that the Producer of
the Program(s) you purchase will have access to your
account information and account activities, such as the
viewing and purchase of the Producer’s Programs, and
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your contact information. Vimeo is not responsible for
a Producer’s use or disclosure of your data.
4. Program Viewing and Purchase Options
Producers may offer the following purchase options
through Producer-branded websites and applications:
•
Rental: After paying the stated fee, you may
stream the Program an unlimited number of
times during the stated rental period.
•
Purchase: After paying the stated fee, you
may stream the Program an unlimited number of times; if offered by the Producer, you
may download the Program.
•
Subscription: For a recurring fee, you may
stream the Programs offered within a Producer’s subscription channel an unlimited
number of times during your subscription period. The Producer may add or remove Programs from the channel at any time.
To make a purchase, you must provide a valid payment
method. We may apply taxes, including VAT (valueadded tax), to any charges. Prices and other terms of
purchase are subject to change. If a Producer provides
you access to a Program on a free basis, such access
will be deemed a “purchase” for the purpose of this
Agreement.
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ALL PURCHASES, INCLUDING RECURRING
CHARGES, ARE FINAL AND NONREFUNDABLE.
Free trials and Discounts: Producers may offer freetrial or discounted subscriptions. When a free-trial period ends, your paid subscription begins (unless you
have cancelled) and you must pay the full monthly or
annual fee. If a Producer provides a discount for the
first subscription period, you must pay the discounted
fee; in any renewal, you must pay the full fee.
Automatic Renewal: To the extent permitted by
applicable law, subscriptions automatically renew for the subscription period until you cancel.
Your payment method will be charged at the beginning of each subscription period. If a Purchaser offers a free-trial period, your payment
method will be charged at the end of the freetrial period unless you cancel before the end of
that period.
How to Decline Renewal: To pause or cancel a
subscription, visit your account settings. Your
changes will be applied to your next subscription period.
In-App Purchase: Producers may allow you to purchase subscriptions within apps you download. When
you make such “in-app” purchases, you will be billed by
the app platform, not us. To turn off automatic renewal
for subscriptions, access your platform’s account settings (not Vimeo’s). Any billing inquiries should be directed to the app platform.
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5. Licenses and Intellectual Property
License to Programs: Subject to the terms hereof,
you have the right to stream and/or (if offered) download for your personal entertainment purposes: (i) Programs that you have rented during the stated rental
period; (ii) Programs that you have purchased; and (iii)
Programs made available within a channel that you
have subscribed to during your subscription period.
Restrictions: You may not resell streams or downloads, use any Program for any commercial purpose,
redistribute or retransmit any Program, publicly perform or display any Program, or make derivative
works from any Program. All rights not expressly
granted herein are reserved by the applicable Producer.
Vimeo OTT Service: Subject to the terms hereof,
Vimeo grants you permission to use the Vimeo OTT
Service for the sole purpose of viewing Programs for
your personal entertainment. All rights not expressly
granted by Vimeo are reserved.
Producer Apps: If you download a Producer application that we power (an “app”) that operates on a thirdparty platform (e.g., iOS, Roku): (i) you have the right
to use such app for your personal, non-commercial use
on devices permitted by the platform operator; (ii) as
between Vimeo and the platform operator (but without
creating any obligation by Vimeo), Vimeo shall be responsible for the apps and their content and providing
any warranty, support, or indemnification with respect
to such apps as required by law; and (iii) the platform
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operator shall have the right to enforce the terms of
this clause with respect to your use of the app.
Your Content; Feedback: To the extent that you submit any content to Vimeo (i.e. in your profile, a comment, or forum), you grant Vimeo an irrevocable,
worldwide, non-exclusive, royalty-free, perpetual right
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on improving our products or services, Vimeo may use
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We may allow you to upload, submit, or publish (collectively, to “submit”) content such as images and text
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(but is not obligated to) monitor your account, content,
and conduct, regardless of your privacy settings. Vimeo
may take all appropriate actions to enforce this Acceptable Use Policy including removing specific videos
or suspending or removing your account.
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You may only upload content that you have the right
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App. 104
Vimeo a takedown notice as stated in our Copyright
Policy if they believe Vimeo is hosting infringing materials. We will, in appropriate circumstances, terminate
the accounts of persons who repeatedly infringe.
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•
Depicts animal cruelty or extreme violence towards animals;
•
Promotes fraudulent or dubious business
schemes or proposes an unlawful transaction;
•
Makes false or misleading claims about vaccination safety;
•
Claims that mass tragedies are hoaxes or
false flag operations;
App. 105
•
Depicts or encourages self-harm; or
•
Violates any applicable law.
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of the Vimeo OTT Service; or attempt to circumvent any of our security, rate-limiting,
App. 106
filtering, or
measures;
digital
rights
management
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App. 107
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App. 108
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not allow the exclusion of certain warranties or the
App. 109
exclusion or limitation of liability as set forth above, so
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Agreement”). In this Arbitration Agreement, you
agree:
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To arbitrate all claims relating to the Vimeo
OTT Service;
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To waive your right to a trial by jury; and
•
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in arbitration or otherwise.
App. 110
10.1 Arbitration Agreement
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any alleged breach thereof ), or your use of the Vimeo
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you reside. Otherwise, the hearing (if any) shall take
App. 111
place in New York County, New York State, United
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after the appointment of the arbitrator, the arbitrator
shall administratively close the arbitration so long as
the proceedings are at an early stage and no hearing
has occurred.
App. 112
10.6 Jurisdiction and Venue
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Controls for International Sale of Goods shall not apply.
App. 113
Choice of Venue for Litigation; Jury Trial
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of its obligations under this Agreement arising out of
App. 114
or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; natural disasters; wars; civil or
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App. 115
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x
App. 116
EXHIBIT H TO CHEAH AFFIRMATION LETTER FROM MICHAEL A. CHEAH
TO MICHAEL D. ANDERSON,
DATED JULY 17, 2020 [84-87]
[LOGO]
Michael A. Cheah
General Counsel
July 17, 2020
By email
Michael D. Anderson, Esq.
Kelly Hart & Hallman, LLP
201 Main Street, Suite 2500
Fort Worth, Texas 76102
Re: Daystar’s Vimeo OTT Account
Dear Mr. Anderson:
I represent Vimeo, Inc. and its subsidiaries
(“Vimeo”). I understand that you represent Word of
God Fellowship Incorporated d/b/a Daystar Television
Network (“Daystar”). I refer to the Order Form between Daystar and Vimeo executed October 7, 2019
under which Daystar agreed to purchase various OTT
and live streaming services from Vimeo. Further to the
emails and conversations between Vimeo and Daystar
representatives over the past several weeks,1 I am
An initial conversation (via Zoom) occurred on June 26
(Vimeo attendees: Mike Vignapiano, VP, Account Management
and Megan McDermott, Account Manager; Daystar attendees:
Joni Lamb and Jonathan Weiss). A follow-up conversation (via
Zoom) occurred on July 10 (Vimeo attendees: Josh Normand, SVP
1
App. 117
hereby providing written notice that Daystar’s Vimeo
OTT account contains videos that do not comply with
Vimeo’s content policies.2 These videos are identified in
Annex A.
In June 2019, Vimeo amended its content policies
to restrict content that “[m]akes false or misleading
claims about vaccination safety.”3 Vimeo announced
this policy change in a staff blog post where it stated
that it would give users a 30-day grace period to voluntarily remove non-compliant content.4 It is Vimeo’s
position that content that claims a causal link between
vaccines and childhood autism violates this policy due
to overwhelming scientific evidence to the contrary.5
Sales, Mr. Vignapiano, and Ms. McDermott; Daystar attendees:
you, Ms. Lamb, and Mr. Weiss).
2
Vimeo’s content restrictions are set forth in its Acceptance
Use Policy, which is found in Section 5 of Vimeo’s Terms of Service
(https://vimeo.com/terms), which is a part of the Vimeo Enterprise
Terms (https://vimeo.com/enterpriseterms), which is a part of the
Order Form. In addition, Section 2 of the Vimeo Enterprise Terms
states Vimeo may terminate its contract if you “repeatedly violate
our Acceptable Use Policy.”
3
Vimeo Terms of Service § 5, 10th bullet.
4
Michael Cheah, Important updates to our content guidelines, Vimeo HQ Blog (June 26, 2019), https://vimeo.com/blog/post/
important-updates-to-our-content-guidelines/.
5
See, e.g., Vaccine Safety, Centers for Disease Control and
Prevention, https://www.cdc.gov/vaccinesafety/concerns/autism.html
(“There is no link between vaccines and autism.”); Dr. Francis
Collins, NIH Director’s Blog, National Institutes of Health (Apr.
28, 2015), https://directorsblog.nih.gov/2015/04/28/no-link-betweenmmr-vaccine-and-autism-even-in-high-risk-kids/ (“Study after study
has found no link between autism spectrum disorders (ASD) and
the measles-mumps-rubella (MMR) vaccine—or any vaccine for
App. 118
Since adopting this policy, Vimeo has removed numerous videos from Vimeo.com that claim a causal link between vaccines and autism.
The videos identified in Annex A do not comply
with Vimeo’s policy regarding vaccination content because they draw such a link. This includes the documentary Vaxxed, which Vimeo has previously removed
from its Vimeo On Demand marketplace. As noted by
one newspaper, “The central premise of the film is that
the country’s mandatory measles, mumps and rubella
(MMR) vaccine—when given to children under age 2—
may be leading to an epidemic of autism diagnoses.”6
The other videos listed in Annex A show clips from
Vaxxed and/or repeat similar claims. Consequently, we
require that they be removed.
As a courtesy, we are providing Daystar until July
24 at 5pm Eastern Time to voluntarily remove the
that matter.”); Cedillo v. Sec’y of Health & Human Servs., No. 98916V, 2009 WL 331968 (Fed. Ct. Cl. Feb. 12, 2009) (rejecting
theory that MMR vaccine causes autism); Autism-vaccine link
debunked, Mayo Clinic (Dec. 13, 2017), https://www.mayoclinic
healthsystem.org/hometown-health/speaking-of-health/autism-vaccinelinkdebunked (“over 25 studies that disprove a connection between autism and the MMR vaccine”); The science is clear: Vaccines are safe, effective, and do not cause autism, HUB, Johns
Hopkins University (Jan. 11, 2017), https://hub.jhu.edu/2017/
01/11/vaccines-autism-public-health-expert/ (“Vaccines in routine
use in the United States do not cause autism.”).
6
Ariana Eunjung Cha, 7 things about vaccines and autism
that the movie ‘Vaxxed’ won’t tell you, WASH. POST (May 25,
2016, 9:25 AM), https://www.washingtonpost.com/news/to-yourhealth/wp/2016/05/25/7-things-about-vaccines-and-autism-that-themovie-vaxxed-wont-tell-you/.
App. 119
identified videos. If the videos are not removed by such
time, we will remove them.7 We further request that
Daystar refrain from re-uploading these videos or uploading any similar content.8
We recognize that in light of our existing content
restrictions, Vimeo’s platform may not be the best fit
for Daystar. Although we would prefer to keep Daystar
as a customer, we are also willing to allow Daystar to
end its agreement after the first 12 months (i.e., in October 2020) and provide a mutually-agreeable timeline
to migrate to another platform. If Daystar is interested
in pursuing this approach, please let me know.
Should you have any questions, please feel free to
contact me directly. Vimeo reserves all rights.
Yours very truly,
/s/ Michael A. Cheah
Michael A. Cheah
cc: Mike Vignapiano
Our Terms of Service do not require Vimeo to host any specific content and expressly allow Vimeo to remove user content.
In addition, Section 230(c)(2) of the Communications Decency Act,
47 U.S.C. § 230(c)(2) immunizes Vimeo from good-faith actions
taken to remove content that Vimeo considers objectionable. See
Domen v. Vimeo, Inc., 433 F. Supp. 3d 592, 603-04 (S.D.N.Y. 2020)
(Section 230(c)(2) precluded claims against Vimeo based upon removal of content).
8
Any attempt to re-upload these videos will be considered a
material breach of the contract and a repeated violation of our
Acceptable Use Policy.
7
App. 120
Annex A
No.Title
URL
Examples9
20:00 (claims that
Robert F. Ken- https://daystar.vhx.
vaccines cause aunedy Jr | Del tv/admin/manage/
1
tism, allergies,
Bigtree | Cedric videos/866878/
ADD, ADHD,
Pisegna
general
SIDS, asthma, etc.)
Vaccinations
https://daystar.vhx.
4:00 (claim that
Exposed Pt. 2 | tv/admin/manage/
2
MMR vaccine
Del Bigtree | videos/645055/
causes autism)
Polly Tommey general
Vaccinations
https://daystar.vhx.
3:40 (claims that
Exposed Pt. 1 | tv/admin/manage/
3
vaccines cause auDel Bigtree | videos/645047/
tism)
Polly Tommey general
Vaxxed - The
4
Movie
https://daystar.vhx.
tv/admin/manage/
See letter
videos/654683/
general
Vaxxed | Fol5
low-up
https://daystar.vhx. 1:20 (clips from
tv/admin/manage/ Vaxxed claiming
that MMR vaccine
videos/655443/
causes autism)
general
19:30 (clips from
Polly Tommey | https://daystar.vhx. Vaxxed regarding
Sheila Ealey | tv/admin/manage/ “vaccine-damaged”
6
children); video
Joel & Nina
videos/642623/
tags include “vacSchmidgall
general
cine” and “autism”;
video description
9
These are illustrative, not exhaustive.
App. 121
includes “shocking
details behind today’s vaccinations
and its connection
to autism”)
App. 122
INTERPRETING 47 U.S.C. § 230(C)(2)
Adam Candeub* & Eugene Volokh**
Section 230(c)(2) immunizes platforms’ decisions
to block material that they “consider[ ] to be obscene,
lewd, lascivious, filthy, excessively violent, harassing,
or otherwise objectionable.” The ejusdem generis interpretive canon suggests that “otherwise objectionable”
should be read “to embrace only objects similar in nature to those objects enumerated by the preceding specific words.”
In this instance, the similarity is that all those
words refer to material that was traditionally viewed
as regulable in electronic communications media—and
was indeed regulated by the Communications Decency
Act of 1996, as part of which § 230 was enacted. And
restrictions on speech on “the basis of its political or
religious content” were not viewed as generally permissible, even in electronic communications.
Introduction ......................................................... 176
I.
One Interpretation: “Otherwise Objectionable” as a Catch-All ................................... 177
II.
The Ejusdem Generis Interpretation ........ 178
A. “Similar in Nature” .............................. 178
* Professor of Law, Michigan State University College of
Law (candeub@msu.edu).
** Gary T. Schwartz Professor of Law, UCLA School of Law
(volokh@law.ucla.edu). Thanks to Jeff Kosseff, Ramsey Ramerman, and Blake Reid for their help.
App. 123
B. The Common Link Among the § 230(c)(2)
Terms ................................................... 180
C. “Political or Religious Content” ............ 183
D. Avoiding “Misleading Surplusage” ....... 186
E. Comparing § 230(c)(2) with § 230(c)(1) ... 187
Conclusion............................................................ 189
INTRODUCTION
Title 47 U.S.C. § 230(c)(2) states:
No provider or user of an interactive computer
service shall be held liable on account of . . .
any action voluntarily taken in good faith to
restrict access to or availability of material
that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,
whether or not such material is constitutionally protected.
Say that a state law mandates that platforms not discriminate on the basis of viewpoint reflected in their
users’ posts. Set aside for now whether such a mandate
would be good policy, consistent with the First Amendment, and consistent with the Dormant Commerce
Clause.1 Would it be preempted by § 230(c)(2)?
See Adam Candeub, Reading Section 230 as Written, 1 J.
FREE SPEECH L. 139 (2021); Eugene Volokh, Treating Social Media Platforms Like Common Carriers?, 1 J. FREE SPEECH L. 377
(2021).
1
App. 124
We think the answer is “no.” Section 230(c)(2) was
enacted as § 509 of the Communications Decency Act
of 1996 (CDA),2 and all the terms before “otherwise objectionable”—“obscene, lewd, lascivious, filthy, excessively violent, harassing”—refer to speech that was
regulated by the rest of the CDA, and indeed that had
historically been seen by Congress as particularly regulable when distributed via electronic communications. Applying the ejusdem generis canon, “otherwise
objectionable” should be read as limited to material
that is likewise covered by the CDA.
Restrictions on, for instance, speech that entices
children into sexual conduct (discussed in CDA § 508)
could be seen as restrictions on “otherwise objectionable” speech. The same may be true of restrictions on
anonymous speech said with intent to threaten (discussed in CDA § 502). But restrictions on speech that
is outside the CDA’s scope should not be seen as immunized by § 230(c)(2). That is particularly true of restrictions on speech on “the basis of its political or
religious content”—restrictions expressly eschewed by
CDA § 551, which distinguished them from regulations
of “sexual, violent, or other indecent material.”
Naturally, nothing in our reading would itself prohibit platforms from blocking material. By default,
they are free to do so, absent some affirmative hosting
obligation that some state or federal law imposes;
§ 230(c)(2) is not such an affirmative obligation. But
if a state wants to ban viewpoint discrimination by
2
Pub. L. No. 104-104 (1996).
App. 125
platforms, such a ban would be permissible and not
preempted by § 230(c)(2).
I. ONE INTERPRETATION: “OTHERWISE
OBJECTIONABLE” AS A CATCH-ALL
To begin with, we want to acknowledge the alternative interpretation: that “otherwise objectionable”
is basically a catch-all phrase that should be read
broadly and “in the abstract”3 referring to anything
that the platform “in good faith” objects to.
Deleting posts that the service views as hateful,
false, or dangerous—or banning users who put up such
posts—would then be immunized by § 230(c)(2): The
service would be “in good faith” “restrict[ing] access to
. . . material that” it “considers to be . . . otherwise objectionable.” Ideologically objectionable speech, the argument goes, remains “objectionable”; and the
question is whether the provider “considers [it] to be”
objectionable, not whether it’s objectionable in some
objective sense. Some courts have generally adopted
this reading.4
Washington State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 383–84, 385 (2003) (distinguishing reading such closing phrases “in the abstract,” and
thus broadly, from reading them to “embrace only objects similar
in nature to those objects enumerated by the preceding specific
words” and thus more narrowly (cleaned up)).
4
Cf. Smith v. Trusted Universal Standards in Elec. Transactions, Inc., No. 09-cv-4567, 2010 WL 1799456, at *6 (D.N.J. May
4, 2010) (“Congress included the phrase ‘or otherwise objectionable’ in its list of restrictable materials, and nothing about the
3
App. 126
Perhaps deleting a post just because it comes from
a competitor, and using insincere claims of ideological
objection to cover for such anticompetitive behavior,
might be “bad faith.”5 Similarly, perhaps a pattern of
dishonest explanation of the basis for removal—for instance, referring to facially neutral terms of service
while covertly applying them in a viewpoint-discriminatory way—might be inconsistent with “good faith,”
which is often defined as requiring an honest explanation of one’s position.6 But there is no absence of “good
faith,” the argument would go, in sincerely objecting to
particular ideas.
context before or after that phrase limits it to just patently offensive items.”); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 63031 (D. Del. 2007) (reading § 230 as providing broad “immunity for
. . . editorial decisions regarding screening and deletion”); Pallorium, Inc. v. Jared, No. G036124, 2007 WL 80955, *7 (Cal. Ct.
App. Jan. 11, 2007) (likewise); Eric Goldman, Online User Account Termination and 47 U.S.C. § 230(c)(2), 2 U.C. IRVINE L. REV.
659, 667 (2012); infra notes 26–27 and accompanying text (discussing Enigma Software Group USA LLC v. Malwarebytes, 946
F.3d 1040, 1052 (9th Cir. 2019), which seemed open to the broad
reading, but ultimately declining to reach the question).
5
Enigma Software Group, 946 F.3d at 1052.
6
See, e.g., Am. Fed’n of Teachers v. Ledbetter, 387 S.W.3d
360, 367 (Mo. 2012) (“act[ing] openly, honestly, sincerely” (cleaned
up)); S. Indus., Inc. v. Jeremias, 66 A.D.2d 178, 183 (1978) (“deal[ing]
honestly, fairly, and openly”); Gas Nat., Inc. v. Iberdrola, S.A., 33
F. Supp. 3d 373, 382 (S.D.N.Y. 2014) (“honest[ ] articulation of interests, positions, or understandings” (cleaned up)).
App. 127
II. THE EJUSDEM GENERIS INTERPRETATION
A.
“Similar in Nature”
We think, though, that the better approach is to
apply the ejusdem generis interpretive canon:
Where general words follow specific words in
a statutory enumeration, the general words
are construed to embrace only objects similar
in nature to those objects enumerated by the
preceding specific words.7
This is a commonly applied rule (even though the
opinions cited in Part I generally did not discuss it8).
Consider, for instance, the Federal Arbitration Act’s
exemption for “contracts of employment of seamen,
railroad employees, or any other class of workers engaged in foreign or interstate commerce.” That could
be read, if one is interpreting the words “any other” in
the abstract, as covering “all [employment] contracts
within the Congress’ commerce power,”9 or at least any
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001)
(cleaned up); see also Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499 U.S. 117, 129 (1991).
8
One exception is Enigma Software Group USA, LLC v. Malwarebytes, Inc., discussed infra in notes 26–27 and accompanying
text. A concurrence in Zango, Inc. v. Kaspersky Lab, Inc. briefly
mentioned the ejusdem generis argument, but only to note that
the plaintiff had failed to raise it and thus waived it. 568 F.3d
1169, 1177, 1178 n.1 (9th Cir. 2009) (Fisher, J., concurring). See
also Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097,
1104 (N.D. Cal. 2011) (citing some of the cases that applied
ejusdem generis in reading § 230(c)(2), but concluding that there
was no need to resolve the controversy in that case).
9
Circuit City, 532 U.S. at 114.
7
App. 128
workers engaged more directly in foreign or interstate
commerce, such as workers at hotels, people who do
telephone sales, and the like. But the Court instead
applied ejusdem generis to read “any other class of
workers” as covering only employment contracts of
transportation workers, by analogy to the preceding
terms (“seamen” and “railroad employees”):
The wording of [the statute] calls for the application of the maxim ejusdem generis. . . .
Under this rule of construction the residual
clause should be read to give effect to the
terms “seamen” and “railroad employees,” and
should itself be controlled and defined by reference to the enumerated categories of workers which are recited just before it; the
interpretation of the clause pressed by respondent [as a catch-all covering all employees engaged in interstate or foreign commerce
writ large] fails to produce these results.10
Likewise, consider Washington State Dep’t of Soc.
& Health Servs. v. Guardianship Estate of Keffeler,
which interpreted a statute protecting Social Security
benefits from “execution, levy, attachment, garnishment, or other legal process.”11 The Court reasoned,
[T]he case boils down to whether the department’s manner of gaining control of the federal funds involves “other legal process,” as
the statute uses that term. . . . [I]n the abstract the department does use legal process
10
11
Id. at 109, 114–15.
537 U.S. 371, 375 (2003).
App. 129
as the avenue to reimbursement: by a federal
legal process the Commissioner appoints the
department a representative payee, and by a
state legal process the department makes
claims against the accounts kept by the state
treasurer.
The statute, however, uses the term “other
legal process” far more restrictively, for under
the established interpretative canons of noscitur a sociis and ejusdem generis, “ ‘[w]here
general words follow specific words in a statutory enumeration, the general words are
construed to embrace only objects similar in
nature to those objects enumerated by the
preceding specific words.’ ” Thus, “other legal
process” should be understood to be process
much like the processes of execution, levy, attachment, and garnishment, and at a minimum, would seem to require utilization of
some judicial or quasi-judicial mechanism. . . .12
“[O]therwise objectionable” in § 230(c)(2), then, should
not be read “in the abstract” as simply referring to anything that an entity views as in some way objectionable. Rather, it should be read as objectionable in ways
“similar in nature” to the ways that the preceding
terms are objectionable.13
Id. at 383-84 (citations omitted, paragraph break added).
See, e.g., Song fi Inc. v. Google, Inc., 108 F. Supp. 3d 876,
883 (N.D. Cal. 2015) (“Given the list preceding ‘otherwise objectionable,’—‘obscene, lewd, lascivious, filthy, excessively violent,
[and] harassing . . . ’—it is hard to imagine that the phrase includes, as YouTube urges, the allegedly artificially inflated view
count associated with Luv ya.’ [T]he terms preceding ‘otherwise
12
13
App. 130
B.
The Common Link Among
the § 230(c)(2) Terms
And the “nature” of the terms preceding “otherwise objectionable” is revealed by the nature of the
Act that included them. The provision codified at 47
U.S.C. § 230 wasn’t enacted as a standalone statute:
It was section 509 of the Communications Decency
Act, the Act that in turn formed Title V of Telecommunications Act of 1996.14 True to its name, the
objectionable’ suggest Congress did not intend to immunize YouTube from liability for removing materials from its website simply
because those materials pose a ‘problem’ for YouTube.”); National
Numismatic Certification, LLC. v. eBay, Inc., No. 6:08-cv-42-Orl19GJK, 2008 WL 2704404, at *25 (M.D. Fla. July 8, 2008) (“It is
difficult to accept, as eBay argues, that Congress intended the
general term ‘objectionable’ to encompass an auction of potentially-counterfeit coins when the word is preceded by seven other
words that describe pornography, graphic violence, obscenity, and
harassment. When a general term follows specific terms, courts
presume that the general term is limited by the preceding
terms.”); Goddard v. Google, Inc., No. C 08-2738 JF (PVT), 2008
WL 5245490, at *6 (N.D. Cal. Dec. 17, 2008) (relying on National
Numismatic to conclude that Google rules requiring various advertisers to “provide pricing and cancellation information regarding their services” “relate to business norms of fair play and
transparency and are beyond the scope of § 230(c)(2)”); Google,
Inc. v. MyTtriggers.com, 2011-2 Trade Cases ¶ 77,662, 2011 WL
3850286, at *4 (Ohio Ct. Corn. Pl.) (“The examples preceding the
phrase `otherwise objectionable’ dearly demonstrate the policy behind the enactment of the statute and provide guidance as to what
Congress intended to be ‘objectionable’ content.”); Annemarie
Bridy, Remediating Social Media: A Layer-Conscious Approach,
24 B.U. J. SCI. & TECH. L. 193, 209–10 (2018).
14
Pub. L. No. 104-104 (1996). The provision was first introduced as the standalone Internet Freedom and Family Empowerment Act, H.R. 1978, 104th Cong.; but it was ultimately enacted
as part of the broader CDA and Telecommunications Act. When
App. 131
Telecommunications Act dealt with a wide range of telecommunications technology, mostly the familiar media of telephone communications, broadcast television,
and cable television, but also the then-new medium of
Internet technology. The Communications Decency Act
likewise dealt with the same range of telecommunications media. The CDA’s table of contents is particularly
telling:
TITLE V—OBSCENITY AND VIOLENCE
Subtitle A—Obscene, Harassing, and Wrongful Utilization of Telecommunications Facilities
Sec. 501. Short title.
Sec. 502. Obscene or harassing use of telecommunications facilities under the Communications Act of 1934 [the text of this also
covered “obscene, lewd, lascivious, [and] filthy”
speech].
Sec. 503. Obscene programming on cable television.
Sec. 504. Scrambling of cable channels for
nonsubscribers.
Sec. 505. Scrambling of sexually explicit adult
video service programming.
the provision was added to the bills that would ultimately be enacted, S. 652 Engrossed Amendment House, 104th Cong. (Oct. 12,
1995), the term “objectionable” was also used elsewhere in the bill
(in § 304), apparently to refer to
This text is long and has been trimmed here. Open the source document for the complete record.
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