Word of God Fellowship, Inc. v Vimeo, Inc.

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Word of God Fellowship, Inc. v Vimeo, Inc. 2021 NY Slip Op 33177(U) February 5, 2021 Supreme Court, New York County Docket Number: Index No. 653735/2020 Judge: Barry R. Ostrager Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] [ 6 ] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. BARRY R. OSTRAGER Justice -------------------------------------------------------------------------- X ---------------------------------------------------------------------------------X W ORD OF GOD FELLOWSHIP, INC. d/b/a DAYSTAR WORD TELEVISION NETWORK, Plaintiff, -- V v -- VIMEO, INC., VHX CORPORATION, and LIVESTREAM, LLC, Defendants. PART 61 EFM IAS MOTION 61EFM IN D E X NO. NO INDEX 653735/2020 M O T IO N DATE D A TE MOTION MOTION M O T IO N SEQ. S E Q . NO. NO. 001 DECISION + ORDER ON MOTION -------------------------------------------------------------------------- X ---------------------------------------------------------------------------------X HON. BARRY R. OSTRAGER The Court heard oral argument via Microsoft M icrosoft Teams on February 5, 2021 on the motion “Vimeo”) for an by defendants Vimeo, Inc., VHX Corporation, and Livestream, LLC (together "Vimeo") l(a)(l) and (7), dismissing this action based on documentary order, pursuant to CPLR 321 3211(a)(1) evidence and failure to state a cause of action. The Court granted the motion on the record and dismissed the Complaint filed by plaintiff W Word ord of God Fellowship, Inc. d/b/a Daystar (“Daystar”) for the reasons stated on the record. This decision and order Television Network ("Daystar") summarizes the Court's Court’s reasoning. According to the Complaint (NYSCEF Doc. No. 1), Daystar is an evangelical Christianbased 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 Y ouTube. Its Vimeo OTT platform allows users to upload video content to its website that can YouTube. then be accessed and viewed by others. The parties here entered into a written agreement entitled "Order Form" with a start date “Order Form” of October 4, 2019 for the Vimeo services at issue (NYSCEF Doc. No. 9). The Order Form [* 2] [ 7 ] expressly incorporated by reference Vimeo's Vimeo’s "Enterprise “Enterprise Terms' Terms’ available on its website (NYSCEF Doc. No. 10). The Enterprise Terms expressly incorporated by reference the "applicable “applicable online terms of service." service.” As particularly relevant here, Vimeo' Vimeo’ss Terms of Service Agreement (NYSCEF Doc. No. 11) included at Section 5 Vimeo's Vimeo’s "Acceptable “Acceptable Use Policy." Policy.” Section 55.2, .2, entitled "Content “Content Restrictions", Restrictions”, lists thirteen categories of restrictions and states: "You ... [[m]akes m ]akes false or misleading claims about vaccination “You may not submit any content that th a t... safety." safety.” At some point it came to Vimeo's Daystar's Vimeo’s attention that five of ofD aystar’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 “false or misleading claims about vaccination safety." safety.” When Daystar did not 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 Vimeo's decision to remove the five vaccine-related videos based on its posted "Content “Content Restrictions" 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 Darnen 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 “No provider ... of an interactive computer service shall be held liable on account of ofan o f ...... 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 -2- 2- [* 3] [ ] 8 objectionable, whether or not such material is constitutionally protected.” 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 “does not require that the material actually be objectionable; rather, it affords protection for blocking material 'that ‘that the provider or Darnen, 433 F. Supp. 3d at 603-04, citing Zango, Inc. v. user considers to be' be’ objectionable." objectionable.” Domen, Kaspersky Lab, Inc., Inc., No. 07-CV-00807 (JCC), 2007 WL 5189857, at *4 (W.D. Wash. Aug. 28, 2007), ajf af f d, 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 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' Vimeo’ss good faith application of its policies. Daystar' Daystar’ss 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' defendants’ motion to dismiss is granted, and the Clerk is directed to enter judgment dismissing this proceeding with prejudice. Dated: February 5, 2021 CHECK ONE: X ASE DISPOSED CASE X GRANTED RANTED • | NON-FINAL DISPOSITION |DENIED d ENIEP GRANTED IN PART APPLICATION: SETTLE ETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES NCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT -3- 3- • • OTHER OTHER REFERENCE

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