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How actionable is a violation of a website term of service, like for example, YouTube's clause 4C which reads:

You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate.

In this clause YouTube is announcing that their "terms of service" require that a viewer only watch YouTube videos through the YouTube player and not through any other player that they might have.

Even aside from the issue of whether I have "agreed" implicitly to this, what possible claim could YouTube make in a court of law against a web user who viewed their videos using a non-YouTube viewer? The legal "agreement" which I never agreed to, does not even specify remedies. How would the remedy even be determined? YouTube decides, oh hey, we decided the remedy is that you owe us $100,000,000 because you watched one of videos on a non-standard viewer?

Have such TOS pronouncements ever been tested in a real court of law?

  • See forbes.com/sites/ericgoldman/2012/10/10/… for one situation where TOS have been tested in a court of law and found wanting. I don't remember how YouTube's TOS are displayed but I do believe they are also "browserwrap" (i.e. somewhere on the site but not forced down your throat before you access content) and as such might be unenforceable. As for the remedies I think @dalem is probably exactly right. In civil cases I believe you have show harm first for damages. – DRF Jan 20 '17 at 10:13
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Assuming that the Terms of Service constitute a contract (most do, see Are terms of service legal contracts?) then they are binding on both the website owner and the user.

If you violate the terms then YouTube's primary response is to cancel the contract i.e. suspend your account and refuse to provide videos to you. That said, if YouTube could demonstrate that your breach of the terms caused them damage (including pure economic loss like loss of profit) then they could sue for damages - this does, however, seem unlikely.

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