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`Case 3:20-cv-02747-LB Document 29 Filed 09/08/20 Page 1 of 31
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`Mark C. Mao (SBN 236165)
`BOIES SCHILLER FLEXNER LLP
`44 Montgomery Street, 41st Floor
`San Francisco, CA 94104
`Telephone:
`(415) 293-6800
`Facsimile:
`(415) 293-6899
`Email:
`
`mmao@bsfllp.com
`
`Menno Goedman (SBN 301271)
`BOIES SCHILLER FLEXNER LLP
`1401 New York Ave. NW
`Washington, DC 20005
`Telephone:
`(202) 237-2727
`Facsimile:
`(202) 237-6131
`Email:
`
`mgoedman@bsfllp.com
`
`
`Attorneys for Plaintiffs Ripple Labs Inc.
`and Bradley Garlinghouse
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`
`RIPPLE LABS INC., a Delaware corporation; and
`BRADLEY GARLINGHOUSE, an individual,
`
`Plaintiffs,
`
`
`v.
`
`YOUTUBE, LLC, a Delaware company,
`
`
`Defendant.
`
`
`
`
` Case No. 20-cv-2747-LB
`
`
`PLAINTIFFS’ OPPOSITION TO MOTION TO
`DISMISS
`Date: October 22, 2020
`Time: 9:30 a.m.
`Place: Courtroom B, 15th Floor
`Judge: Magistrate Judge Laurel Beeler
`
`Complaint filed: April 21, 2020
`
`
`
`
`
`
`
`OPPOSITION TO MOTION TO DISMISS
`CASE NO. 20-cv-2747-LB
`
`

`

`Case 3:20-cv-02747-LB Document 29 Filed 09/08/20 Page 2 of 31
`
`TABLE OF CONTENTS
`
`INTRODUCTION ...........................................................................................................................1
`
`FACTS .............................................................................................................................................2
`A.
`The Parties ...........................................................................................................................2
`B.
`A Scam Thrives on YouTube ..............................................................................................3
`C.
`YouTube Materially Contributes to the Scam, Instead of Stopping It ................................5
`D.
`The Scam Irreparably Harms Ripple and Mr. Garlinghouse ...............................................7
`
`ARGUMENT ...................................................................................................................................8
`A.
`YouTube Knew of Trademark Infringement, But Failed to Stop the Scam ........................8
`B.
`YouTube Is an Information Content Provider and Cannot Invoke Section 230
`Immunity ............................................................................................................................16
`Plaintiffs’ UCL and Right of Publicity Claims Are Well Pleaded ....................................21
`
`C.
`
`CONCLUSION ..............................................................................................................................25
`
`
`
`
`
`I.
`
`II.
`
`III.
`
`IV.
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`OPPOSITION TO MOTION TO DISMISS
`CASE NO. 20-cv-2747-LB
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`

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`Case 3:20-cv-02747-LB Document 29 Filed 09/08/20 Page 3 of 31
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`TABLE OF AUTHORITIES
`
`Cases
`Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) ............................................................................. 16
`Berry v. Webloyalty.com, Inc., 2010 WL 8416525 (S.D. Cal. Nov. 16, 2010) ........................................ 21
`Chloe SAS v. Sawabeh Info. Servs. Co., 2014 WL 4402218 (C.D. Cal. Sept. 5, 2014) ..................... 12, 13
`Coach, Inc. v. Celco Customs Servs. Co., 2012 WL 12883972 (C.D. Cal. Oct. 31, 2012) ................ 15, 16
`Cross v. Facebook, 14 Cal. App. 5th 190 (2017) ............................................................................... 22, 23
`Dyroff v. Ultimate Software Grp., 934 F.3d 1093 (9th Cir. 2019)........................................................... 19
`Emery v. Visa Int’l Serv. Ass’n, 95 Cal. App. 4th 952 (2002) .................................................................. 24
`Erickson Prods., Inc. v. Kast, 921 F.3d 822 (9th Cir. 2019) ................................................................... 12
`Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir.
`2008) .............................................................................................................................................. passim
`Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996) .................................................... 9, 15
`Ford Dealers Ass’n v. Dep’t of Motor Vehicle, 32 Cal.3d 347 (1982) ..................................................... 23
`Fraley v. Facebook, 830 F. Supp. 2d 785 (N.D. Cal. 2011) ......................................................... 18, 20, 23
`Free Kick Master LLC v. Apple Inc., 2016 WL 777916 (N.D. Cal. Feb. 29, 2016) ................................. 15
`Gibson v. Craigslist, Inc., 2009 WL 1704355 (S.D.N.Y. June 15, 2009) ................................................ 20
`Gonzalez v. Google, Inc., 282 F. Supp. 3d 1150 (N.D. Cal. 2017)........................................................... 20
`In re Bitconnect Securities Litigation, 2019 WL 9104318 (S.D. Fla. Aug. 23, 2019) ............................. 19
`In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268 (9th Cir. 2013)............. 21
`In re Tobacco II Cases, 46 Cal. 4th 298 (2009).................................................................................. 24, 25
`Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398 (6th Cir. 2014) .................................... 19, 20
`Kimzey v. Yelp! Inc., 836 F.3d 1263 (9th Cir. 2016) ........................................................................ passim
`Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014) ..................................................................................... 1
`Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980 (9th Cir. 1999) .................................. 12
`Louis Vuitton Malletier, S.A. v. Akanoc Sols, Inc., 658 F.3d 936 (9th Cir. 2011) ............................ 8, 9, 11
`Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 591 F. Supp. 2d 1098 (N.D. Cal. 2008) ............. 11-12
`Luxottica Grp., S.p.A. v. Airport Mini Mall, LLC, 287 F. Supp. 3d 1338 (N.D. Ga. 2017) ..................... 13
`McKay v. Hageseth, 2007 WL 1056784 (N.D. Cal. Apr. 6, 2007) ........................................................... 24
`iii
`OPPOSITION TO MOTION TO DISMISS
`CASE NO. 20-cv-2747-LB
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`

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`Case 3:20-cv-02747-LB Document 29 Filed 09/08/20 Page 4 of 31
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`Omega SA v. 375 Canal, LLC, 2013 WL 2156043 (S.D.N.Y. May 20, 2013) ......................................... 14
`People v. Toomey, 157 Cal. App. 3d 1 (1984) .......................................................................................... 24
`Perfect 10, Inc. v. Google, Inc., 2010 WL 9479060 (C.D. Cal. July 30, 2010 ......................................... 23
`Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788 (9th Cir. 2007) .......................................... 2, 23-24
`Perkins v. LinkedIn Corp., 53 F. Supp. 3d 1222 (N.D. Cal. 2014) ........................................................... 17
`Podolsky v. First Healthcare Corp., 50 Cal. App. 4th 632 (1996) ........................................................... 25
`Ray v. BlueHippo Funding, LLC, 2008 WL 1995113 (N.D. Cal. May 6, 2008) ...................................... 24
`Rivas v. Physician Labs., Inc., 2018 WL 6133722 (C.D. Cal. Oct. 24, 2018) ......................................... 24
`Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016) ..................................................................................... 22
`Spy Optic, Inc. v. Alibaba.com, Inc., 163 F. Supp. 3d 755 (C.D. Cal. 2015) ...................................... 10-11
`Spy Phone Labs LLC v. Google, Inc., 2016 WL 6025469 (N.D. Cal. Oct. 14, 2016) .................. 10, 11, 15
`Spy Phone Labs LLC v. Google, Inc., 2016 WL 1089267 (N.D. Cal. Mar. 21, 2016) ....................... 11, 13
`Theta Chi Fraternity, Inc. v. Leland Stanford Junior Univ., 212 F. Supp. 3d 816 (N.D. Cal. 2016) ......... 9
`Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010) ........................................................... 11, 13, 14
`Y.Y.G.M. SA v. Redbubble, Inc., 2020 WL 3984528 (C.D. Cal. July 10, 2020) ....................................... 13
`
`Codes & Statutes
`47 U.S.C. § 230(c)(1) ......................................................................................................................... passim
`47 U.S.C. § 230(f)(3) ................................................................................................................................ 21
`Cal. Bus. & Prof. Code § 17200 ......................................................................................................... 23, 24
`Cal. Bus. & Prof. Code § 17500 ......................................................................................................... 23, 24
`California Civil Code § 3344 .............................................................................................................. 22, 23
`Rules
`Fed. R. Civ. Proc. 12(b)(6) ......................................................................................................................... 1
`Other Authorities
`Black’s Law Dictionary (10th ed. 2014)................................................................................................... 12
`
`Gaab & Reese, Rutter Cal. Practice Guide: Civil Procedure Before Trial at ¶ 14:117 ............................ 25
`Jibin M. George, Another XRP Giveaway Scam Goes Live – YouTube, Where Art Thou?,
`AMBCrypto (August 20, 2020) ............................................................................................................ 16
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`OPPOSITION TO MOTION TO DISMISS
`CASE NO. 20-cv-2747-LB
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`Case 3:20-cv-02747-LB Document 29 Filed 09/08/20 Page 5 of 31
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`M. Pantalony, Contributing to Infringement: Intermediary Liability After Tiffany v. eBay and
`Louis Vuitton v. Akanoc, 105 Trademark Rep. 709, 712-13 (2015) .................................................... 14
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`OPPOSITION TO MOTION TO DISMISS
`CASE NO. 20-cv-2747-LB
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`

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`Case 3:20-cv-02747-LB Document 29 Filed 09/08/20 Page 6 of 31
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`I.
`
`INTRODUCTION
`For nearly a year now, an extensive and harmful Scam has thrived on Defendant YouTube LLC’s
`platform. The Scam is simple enough: unknown individuals use YouTube accounts to impersonate
`Plaintiffs Ripple Labs Inc. and Mr. Bradley Garlinghouse (together, “Ripple”), and then trick unsuspecting
`people into handing over XRP (a virtual currency) on the false promise they will receive a windfall in
`return. By actively participating in the Scam and utterly failing to stop it, YouTube contributorily
`infringed Ripple’s trademarks, violated Mr. Garlinghouse’s right of publicity, and engaged in unlawful,
`unfair, and fraudulent business practices under California law.
`YouTube’s Motion to Dismiss asks the Court to ignore the allegations in the Complaint and to set
`aside common sense. This turns on its head the controlling Rule 12(b)(6) standard requiring the Court to
`accept all allegations as true and draw all inferences in favor of Ripple. See Leite v. Crane Co., 749 F.3d
`1117, 1121 (9th Cir. 2014). Because each of YouTube’s three arguments fails, the Motion should be
`denied.
`First, as to contributory trademark infringement, YouTube challenges the claim on only a single
`ground: YouTube supposedly lacks “knowledge” of a widespread and pervasive Scam occurring on its
`platform. But this ignores more than 350 takedown notices (and counting) sent to YouTube by Ripple.
`YouTube routinely failed to respond to these notices at all. When YouTube did respond, it typically did
`so only weeks or even months later. YouTube’s position also disregards warnings from its own users and
`widespread media coverage of the Scam. In short, the Complaint establishes that YouTube had actual and
`constructive knowledge of the Scam. And, to the extent YouTube now disavows such knowledge, the
`only plausible explanation is that YouTube is willfully blind to the Scam. YouTube’s feigned ignorance
`is thus directly contradicted by allegations in the Complaint and should be rejected.
`Second, as to Ripple’s state law claims, YouTube seeks to cloak itself in Section 230 immunity on
`the ever-expanding theory that it is merely an “interactive computer service.” But this ignores that
`YouTube developed content for the Scam by “verifying” hacked accounts and then profited from it. It
`also ignores that this is not YouTube’s first brush with cryptocurrency scams: YouTube has been sued
`previously for abetting a different cryptocurrency-related fraud. And while YouTube escaped liability in
`that instance, the Court should reject YouTube’s attempt to transform Section 230’s limited protection
`
`1
`OPPOSITION TO MOTION TO DISMISS
`CASE NO. 20-cv-2747-LB
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`Case 3:20-cv-02747-LB Document 29 Filed 09/08/20 Page 7 of 31
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`into an all-encompassing get-out-of-jail-free card. This flawed interpretation of Section 230 would permit
`YouTube to, quite literally, do nothing, even when it knows of a pervasive fraud, actively develops content
`to render the fraud more deceptive, and has the tools to stop it. That is not and should not be the law.
`Third, YouTube contends that Ripple’s state law claims are deficiently pleaded. This argument
`overstates the law and misunderstands Ripple’s allegations. YouTube’s claim that it did not “use”
`Ripple’s protected trademarks or Mr. Garlinghouse’s likeness is not credible: YouTube verified hacked
`accounts and sold ads that infringed on Ripple’s marks and misappropriated Mr. Garlinghouse’s name and
`image. In the process, YouTube “used” Mr. Garlinghouse’s likeness and directly participated in the fraud.
`These allegations suffice.
`The Court should reject YouTube’s arguments, deny the Motion, and order the parties to move
`forward with discovery. At a minimum, YouTube’s Motion raises contestable questions of fact (over
`which YouTube has exclusive knowledge) that are best resolved after discovery and a trial on the merits.
`Any other result will only encourage YouTube to continue its misconduct and will inevitably lead to more
`victims and greater harm to Ripple and Mr. Garlinghouse.1
`FACTS
`II.
`The Parties
`A.
`Plaintiff Ripple Labs is a leading enterprise blockchain company. Compl. ¶ 12. Its mission is to
`create the Internet of Value, where money can move as quickly and securely as information. Id. ¶ 19.
`Ripple Labs offers a suite of enterprise software products to facilitate seamless and reliable cross-border
`payments. Id. ¶ 20. Ripple counts hundreds of financial institutions as customers. Id. XRP is a digital
`asset used by Ripple customers in cross-border transactions. Id. ¶ 21. Ripple owns several valuable
`trademarks, including the terms “Ripple” and “Ripple Labs,” as well as the company’s distinctive
`
`
`1 YouTube also engages in victim-blaming, taking issue that Ripple has “not filed any claims
`against the actual fraudsters.” Mot. at 2, 7. What goes unsaid, of course, is why Ripple has not brought
`such claims, namely, because only YouTube knows the identities of the “actual fraudsters.” See also
`Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 823 (9th Cir. 2007) (Kozinsky, J., dissenting) (“It
`would certainly be much easier for us if plaintiff were suing the Stolen Content Websites, rather than the
`credit cards. No doubt, they would if they could. But direct infringers are sometimes too ubiquitous, too
`small, or too difficult to find.”). YouTube’s exclusive access to this information supports allowing this
`case to proceed to discovery. Meanwhile, YouTube’s unfounded and inaccurate assertion that “XRP” is
`“particularly susceptible to being misused in scams,” Mot. at 3, is contradicted by its own Motion, which
`elsewhere concedes “[t]hese schemes are not unique to” Ripple or XRP, id. at 2.
`2
`OPPOSITION TO MOTION TO DISMISS
`CASE NO. 20-cv-2747-LB
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`

`Case 3:20-cv-02747-LB Document 29 Filed 09/08/20 Page 8 of 31
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`triskelion logo, which consists of three connected circles. Id. ¶ 23-25. These marks define Ripple’s brand
`and identity. Id. ¶ 26.
`Plaintiff Mr. Garlinghouse is the CEO of Ripple Labs. Id. ¶ 22. Since assuming the role in 2017,
`Mr. Garlinghouse has been the public face of the company. Id. Mr. Garlinghouse is a trusted voice and
`thought leader on financial technology and digital assets. Id.
` YouTube is a video-sharing platform that generates $15 billion in annual revenue. Id. ¶ 27.
`YouTube enables its users and creators to view, post, and comment on video content. Id. ¶¶ 28-29.
`YouTube monetizes its users, its creators, and their content by selling ads. Id. ¶ 27. YouTube has robust
`tools to self-regulate content on its platform. Id. ¶ 30. YouTube regularly touts its capacity for self-
`regulation, including, as relevant here, its ability to detect misleading and fraudulent scams. Id. ¶ 30. For
`example, YouTube’s Community Guidelines purport to bar “scams” and “other deceptive practices” that
`harm users. Id. ¶ 31. This includes “content offering cash gifts, ‘get rich quick’ schemes, or pyramid
`schemes.” Id. YouTube moderates its platform through a combination of people and technology, which
`includes reliance on “cutting-edge machine learning.” Id. ¶ 32.
`A Scam Thrives on YouTube
`B.
`Starting in 2019, a fraud—often referred to as “the XRP Giveaway Scam”—flourished on
`YouTube. Id. ¶¶ 1-3, 34. The Scam relies on spear phishing attacks, hacked YouTube accounts, and the
`misappropriation of Mr. Garlinghouse’s likeness and Ripple’s marks. Id. ¶ 2. But it also depends on
`YouTube’s complacency and unwillingness to take action. Id. ¶ 3.
`
`
`
`One common iteration of the Scam works as follows:
`• A legitimate and popular YouTube creator—often with many thousands of subscribers—is
`targeted via an email spear-phishing attack.
`
`• By responding to this email, the creator unknowingly and unintentionally shares his or her
`YouTube credentials with the attacker.
`
`
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`OPPOSITION TO MOTION TO DISMISS
`CASE NO. 20-cv-2747-LB
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`Case 3:20-cv-02747-LB Document 29 Filed 09/08/20 Page 9 of 31
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`• These credentials are then used to strip the creator’s YouTube channel(s) of its content
`(including all videos) and to transform it into a channel that impersonates Ripple’s and/or Mr.
`Garlinghouse’s official channel. For example:
`
`• By using the hacked channels to impersonate the “official” channels of Ripple and Mr.
`Garlinghouse, the YouTube accounts infringe upon Ripple’s protected trademarks, including
`its logo and name. Likewise, these accounts misappropriate Mr. Garlinghouse’s image, name,
`and likeness.
`
` •
`
` •
`
` The hacked accounts then begin to run publicly available content related to Ripple, often an
`interview with Mr. Garlinghouse or other members of Ripple’s leadership team. These videos
`often prominently display Ripple’s protected trademarks, including its logo and name.
`
` Superimposed across these videos is a message instructing viewers on how to learn more about
`the fake “giveaway.” For example, one message stated: “Details About The Giveaway Are In
`The Description.”
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`OPPOSITION TO MOTION TO DISMISS
`CASE NO. 20-cv-2747-LB
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`• Beneath the video, the mechanics of the Scam are provided in greater detail: To “participate”
`in the “Giveaway,” the viewer is instructed “to send between 5000 XRP to 1,000,000 XRP” to
`a specific virtual currency wallet; in return, the post promises, the sender will receive “between
`25,000 XRP to 5,000,000 XRP to the address you sent it from.”
`
`• After the victim sends XRP to the stated address, their XRP is gone and they never receive
`anything in return. They become another victim of the Scam.
`
`Id. ¶ 35.
`
`Each instance of the Scam was and is substantially the same. Id. ¶¶ 53, 65. That is, a YouTube
`account is created or taken over to impersonate Ripple and/or Mr. Garlinghouse; the accounts
`misappropriate Ripple’s marks and Mr. Garlinghouse’s name and likeness; they post video content
`relating to Ripple or XRP; they use common terms such as “XRP,” “Airdrop,” and “Giveaway”; and they
`actively promote the Scam. Id.
`YouTube Materially Contributes to the Scam, Instead of Stopping It
`C.
`YouTube learns of the Scam, but refuses to stop it.
`1.
`As early as November 2019, news reports in popular outlets started to report on YouTube’s
`involvement with the Scam. Compl. Ex. 8, Dkt. 1-1 at 141 (“Forbes Article”). One such article ran with
`the headline “A YouTuber With 350,000 Subscribers Was Hacked, YouTube Verified His Hacker.” Id.
`It detailed the saga of popular YouTube creator MarcoStyle, reporting that, following the hack, “[a]ll his
`videos were taken down” and “[h]is profile was changed to read ‘Brad Garlinghouse,’ with the name and
`picture of the real-life CEO of fintech company Ripple.” Id.; see also Compl. ¶ 40. Shortly thereafter,
`“the hacker started running a livestream meant to scam viewers out of money.” Forbes Article, Dkt. 1-1
`at 142. “By the time the scam was over, it reportedly stole about $15,000 from viewer’s Ripple wallets[.]”
`
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`CASE NO. 20-cv-2747-LB
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`

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`Id. The article details MarcoStyle’s efforts to alert YouTube, explaining that “[a]s soon as Marco lost
`control of his channel, he contacted YouTube,” who acknowledged the issue that same day, but did not
`resolve it until nearly a week later. Id.
`Since the Forbes article in November 2019, Ripple sent YouTube more than 350 takedown notices
`in connection with specific instances of the Scam. Id. ¶ 47. These takedown notices related to accounts
`and channels that perpetuated the Scam by impersonating Mr. Garlinghouse, infringing on Ripple’s marks,
`or both. Id. In many cases, due to YouTube’s inaction, Ripple was compelled to send multiple takedown
`notices to YouTube for the same content. Id. ¶ 48 (identifying several representative, but not exhaustive,
`examples). At the time the Complaint was filed, new instances of the Scam continued to appear nearly
`every day, often amassing tens of thousands of views in a matter of hours. Id. ¶ 49.
`YouTube was also put on notice by its own users, who were exposed to the Scam. Id. ¶ 52. For
`example, in March 2020, a user encountered a channel—which prominently featured Ripple’s protected
`marks and used Mr. Garlinghouse’s name and image to promote the Scam—and immediately alerted
`YouTube. Id. YouTube failed to take action and the next day the video had been viewed 85,000 times.
`Id.
`
`Notwithstanding this news coverage, Ripple’s takedown notices, or the warnings of its users,
`YouTube ignored the Scam or otherwise failed to act. Id. ¶ 48. Contrary to YouTube’s claims, Mot. at 1,
`4, YouTube routinely took no action at all; at other times, YouTube would act, but only belatedly after
`doing nothing for weeks or months. Compl. ¶ 48. For example, the Complaint identifies several instances
`where Ripple repeatedly gave notice to YouTube (including one hacked channel that Ripple reported to
`YouTube 14 times), but YouTube took corrective action only months later. Id.
`YouTube materially contributes to the Scam.
`2.
`YouTube was not satisfied with simply ignoring repeated warnings. Instead, it became an active
`and critical participant in the Scam. Id. ¶ 36. On at least one occasion—but potentially more—YouTube
`awarded a “verification badge” to a hacked channel that was actively promoting the Scam. Id. ¶¶ 40-41.
`Separately, YouTube also verified numerous YouTube accounts engaged in the Scam, which enhances
`the functionality of these accounts to, for example, permit live streaming or the posting of longer videos.
`Id. ¶ 43. Based on YouTube’s own description of its verification process, YouTube verifies channels by
`
`6
`OPPOSITION TO MOTION TO DISMISS
`CASE NO. 20-cv-2747-LB
`
`

`

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`Case 3:20-cv-02747-LB Document 29 Filed 09/08/20 Page 12 of 31
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`
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`awarding “verification check marks.” Compl. Ex. 10, Dkt. 1-1 at 154 (“YouTube Verification Policy”).
`In determining whether to award a verification badge or check mark, YouTube reviews channels to ensure
`they are “authentic” and “complete.” Id. YouTube makes clear that it will not “verify channels that are
`trying to impersonate another creator or brand.” Id. YouTube’s verification criteria make clear that only
`YouTube can verify a channel—users cannot self-verify or verify other users. Id. YouTube’s deliberate
`decision to affirmatively verify these channels and accounts is consequential: verification by YouTube
`communicates to YouTube’s vast user base that the channel “is the official channel of a creator, artist,
`company, or public figure.” Id.; see also id. (“Verified channels help distinguish official channels from
`other channels with similar names on YouTube.”).
`YouTube profits from the Scam.
`3.
`YouTube had a strong financial incentive to contribute to the Scam’s proliferation on its platform:
`ad revenue. Id. ¶ 37. At some point (discovery will reveal precisely when), YouTube started to sell ads
`to fraudsters engaged in the Scam. Id. These ads typically featured Mr. Garlinghouse’s name and likeness,
`infringed on Ripple’s marks, and promoted the Scam. Id. ¶¶ 37-38. YouTube’s incentives were thus fully
`aligned with the fraudsters: sell infringing ads, optimize them to attract users, and profit as the Scam
`spreads.2 A representative ad looked as follows:
`
`
`The Scam Irreparably Harms Ripple and Mr. Garlinghouse
`D.
`The harm inflicted by the Scam is vast and ongoing. Id. ¶ 3. Although only YouTube knows
`precisely how far and wide it has spread, the Scam has been viewed by millions and defrauded victims
`out of millions of XRP, valued at hundreds of thousands of dollars. Id. The longer YouTube maintains
`its policy of inaction and affirmative misconduct, the more victims there will be.
`
`
`2 Because YouTube verified hacked channels and accounts, sold fraudulent, and optimized them
`for profit, YouTube’s claim, Mot. at 4, that Ripple does “not allege that YouTube has any relationship
`with the scammers, that YouTube itself participated in or encouraged the scam, or that it created any of
`the allegedly fraudulent content” is demonstrably false. The same is true for YouTube’s false assertion,
`id. at 3, that Ripple does not allege “YouTube in any way condones or encourages scams or fraudulent
`activities.” That is precisely what Ripple alleges. Ripple’s Complaint cannot be read any other way.
`7
`OPPOSITION TO MOTION TO DISMISS
`CASE NO. 20-cv-2747-LB
`
`

`

`Case 3:20-cv-02747-LB Document 29 Filed 09/08/20 Page 13 of 31
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`By creating the false impression that they are somehow associated with the Scam—or, worse yet,
`responsible for it—YouTube has irreparably injured Ripple’s brand and Mr. Garlinghouse’s reputation.
`Id. ¶ 4. As early as November 2019, Mr. Garlinghouse felt compelled to address the confusion publicly:
`posting on Twitter about YouTube’s complete failure to “take action” against “35+ users impersonating”
`him. Id. ¶ 59. Since then, Ripple has received extensive correspondence from victims, much of which
`(incorrectly) accuses Ripple of wrongdoing. Id. ¶ 55. Meanwhile, in February 2020, Mr. Garlinghouse’s
`Wikipedia page was edited to prominently feature discussion of the Scam, wrongly implying that Mr.
`Garlinghouse may have perpetrated the Scam, a fact which reinforces the reputational harm he has
`suffered. Id. ¶ 58.
`III. ARGUMENT
`YouTube’s Motion raises three arguments. Each argument fails by misstating the law, ignoring
`allegations in the Complaint, or both. First, YouTube contends it cannot be contributorily liable for
`trademark infringement because “the Complaint offers nothing to suggest that YouTube had the degree of
`knowledge needed for a claim of contributory trademark infringement or that YouTube failed to act when
`it was supplied with the requisite knowledge.” Mot. at 13-17. Second, YouTube contends Ripple’s state
`law claims—for violations of the right of publicity and the UCL—are barred by Section 230 of the
`Communications Decency Act. Mot. at 5-10. And, third, YouTube asserts that, even aside from Section
`230, the state law claims are not adequately pleaded. Mot. at 10-13. All of YouTube’s arguments fail and
`the Motion should be denied.
`YouTube Knew of Trademark Infringement, But Failed to Stop the Scam
`A.
`To state a claim for contributory trademark infringement, Ripple must plead that YouTube “[1]
`continued to supply its services [2] to one who it knew or had reason to know [3] was engaging in
`trademark infringement.” Louis Vuitton Malletier, S.A. v. Akanoc Sols, Inc., 658 F.3d 936, 941 (9th Cir.
`2011). Ripple has done so. Indeed, YouTube does not contest that third-party fraudsters engaged in direct
`infringement and that YouTube continued to provide services to these individuals. Instead, YouTube
`challenges Ripple’s trademark infringement claim on only a single ground: that YouTube lacked the
`requisite knowledge of infringement. Mot. at 14 (“Plaintiffs try to satisfy the knowledge requirement in
`several ways, but none succeeds.”). This argument fails.
`
`8
`OPPOSITION TO MOTION TO DISMISS
`CASE NO. 20-cv-2747-LB
`
`

`

`Case 3:20-cv-02747-LB Document 29 Filed 09/08/20 Page 14 of 31
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`A viable claim for contributory trademark infringement must allege that defendants had “actual or
`constructive knowledge” that their users “were engaging in trademark infringement.” Louis Vuitton, 658
`F.3d at 943 (“An express finding of intent is not required.”). Alternatively, even where actual or
`constructive knowledge is lacking, a claim is viable where defendants demonstrate a “willful blindness to
`direct infringement.” Theta Chi Fraternity, Inc. v. Leland Stanford Junior Univ., 212 F. Supp. 3d 816,
`825-26 (N.D. Cal. 2016) (citing and quoting Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th
`Cir. 1996)).
`Here, Ripple’s allegations make clear that YouTube had actual and constructive knowledge of
`infringement. Ripple’s claim is therefore viable and should proceed. Moreover, to the extent YouTube
`now disavows such knowledge, it can only be the product of “willful blindness,” which is likewise
`sufficient to support Ripple’s cause of action.
`YouTube had actual knowledge of the Scam, but failed to act.
`1.
`The Complaint leaves no doubt that YouTube had actual knowledge of the Scam and the
`infringement it involved. To begin, Ripple sent over 350 takedown notices to YouTube in the six months
`preceding this action.3 Compl. ¶ 47. Because each notice was specific to a particular account or channel,
`YouTube had actual knowledge of hundreds of instances of the Scam. Nevertheless, YouTube ignored or
`entirely failed to respond to many of these notices. Id. ¶ 48. And even

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