Metropolitan News-Enterprise


Friday, January 12, 2024


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Ninth Circuit:

Website Owner Has No Property Interest in Image on Screen

Panel Says Action Must Be Dismissed Against Google for Inserting Advertising Matter on What User Sees in Visiting Website; What Appears Is Merely ‘Copy’ of a Website Page, Opinion Explains, Rejecting Trespass-to-Chattels Claim


By a MetNews Staff Writer


Depicted is plaintiff Best Carpet Values’s website as depicted on an Android mobile phone, with the words, “VIEW 15 RELATED PAGES” superimposed over the website’s content. If clicked on, links would occupy 90 percent of the screen. The Ninth U.S. Circuit Court of Appeals held yesterday that this did not constitute a trespass to chattels.

What appears on an Internet user’s screen is not the website that’s visited but a “copy” of pages of that website, the Ninth U.S. Circuit Court of Appeals said yesterday, holding that if a browser causes advertisements or other matter to appear on the user’s screen, the website proprietor has no claim based on a trespass to chattels.

“We hold that there is no cognizable property interest in website copies that may serve as the basis for a trespass to chattels claim under California law,” Senior Circuit Judge J. Clifford Wallace wrote.

A putative class action was bought by Best Carpet Values, Inc. and Thomas D. Rutledge, website proprietors, against Google, LLC based on how Google displayed websites in its “search app” on Android phones from March 2018 to April 2020. They alleged in their complaint, filed in the U.S. District Court for the Northern District of California on July 14, 2020 that Google derived “illicit benefits by programing Android mobile phones to impose unpaid-for ads on websites whenever they were viewed by Android owners who used Google’s ‘Search App’ to search the internet.”

Plaintiffs’ Claim

They asserted:

“To effectuate and maximize the returns from its scheme, Google secretively placed its Search App on every Android phone in a manner that was designed to induce Android owners to use the Search App exclusively or extensively in lieu of web browsers or other means of searching the internet.”

The complaint alleges:

“Google abused its control over Android mobile phones and its dominant positions in the internet search and internet advertising markets to plant non-consensual, free advertising on up to 100 million U.S.-based websites when those websites were viewed by the 50 million U.S. Android owners who use Google’s Search App.”

A bar would appear at the bottom of the screen, blocking the website’s content from view, with words appearing, “VIEW 15 related pages,” the pleading explains, and, when clicked on, it says, links to other websites—including competitors of the website proprietor, would take over most of the screen.

“Defendant intentionally and without authorization interfered with Plaintiffs’ and the Class’s and Subclasses’ possessory interests in their proprietary websites by blocking 10% to 90% of their website pages’ content from public view and occluding the remaining content when viewed on Android phones through Google’s Search App,” the complaint avers.

The plaintiffs sought damages “for the diminished value of Plaintiffs’ websites resulting from Google’s obstruction and interference with their websites’ presentation and content.”

Dismissal Sought

 Google moved for a dismissal of the trespass-to-chattels claim  and other claims. Judge Edward J. Davila granted its motion only as to a claim under California’s Unfair Competition Law.

Citing the Ninth Circuit’s 2003 decision in Kremen v. Cohen, which says that there is a property interest in a domain name, he declared:

“Plaintiffs have property rights to their websites for the same reasons a registrant has property rights to a domain name….Plaintiffs contend that website ownership grants them a right to be paid for the advertising space occupied by Google on their websites. And like a domain name, a website is a form of intangible property that has a connection to an electronic document.”

Wallace’s Opinion

Disagreeing, Wallace wrote:

“Plaintiffs do not allege a possessory interest in copies of their websites sufficient to give rise to a trespass to chattels claim. Under California law, trespass to chattels ‘lies where an intentional interference with the possession of personal property’ causes injury….Plaintiffs assert only a conclusory allegation that they have ‘possessory interests’ in the copies of their websites that are transmitted to a user’s device upon a request from Search App. We do not accept this legal conclusion as true….Nor should we. Under Plaintiffs’ theory, they maintain a possessory interest in an intangible copy that (1) is created when a user visits a website via the Search App, (2) exists on the user’s device, and (3) is deleted by the user when they leave the page. Plaintiffs’ possessory interest is thus entirely dependent on actions taken by an individual user unassociated with Plaintiffs or their websites. A possessory interest does not lie under these circumstances.”

One question certified to the Ninth Circuit was whether Kremen “should be extended to protect as chattel the copies of websites displayed on a user’s screen.” Wallace said:

“[W]e answer in the negative.”

Second Question

Another question was “[w]hether website owners can invoke state law to control how their websites are displayed on a user’s screen without preemption by federal copyright law.”

Wallace responded:

“Again, we answer the certified question in the negative.:

The plaintiffs put forth theories under California law based on state-law implied-in-law contract and unjust enrichment theories. But, Wallace said, state-law claims are barred because the content of websites may be copyrighted, and the Copyright Act is preemptive.

There was no need to answer two other questions, the judge said.

The case is Best Carpet Values, Inc. v. Google LLC, 22-15899.


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