The Ninth Circuit recently dismissed a putative class action by an online business over allegations that Google placed search results over the business’s website. While the district court had denied a motion to dismiss, the Ninth Circuit reversed, holding that copies of websites are not chattel that could support a trespass to chattel claim and that the Copyright Act preempted the remaining claims of unjust enrichment, implied in law contract, and unfair competition.

In Best Carpet Values, Inc. v. Google, LLC, 90 F.4th 962, 966 (9th Cir. 2024), online business Best Carpet Values brought a range of California state law claims against Google based on allegations over how Google displayed websites in its search app on Android Phones. Plaintiffs contended that the Android Search App displayed websites with a “frame,” which invited the user to view related search results. If clicked on, the frame expanded into a banner that displayed related websites, “occupying up to eighty percent of the screen size and shadowing the remaining twenty percent.” Plaintiffs argued that by displaying the frame and the banner, Google “occupied valuable space” on Plaintiffs’ website, without authorization or payment. The district court denied Google’s motion to dismiss but granted Google’s motion to file an interlocutory appeal.

On interlocutory appeal, a panel of the Ninth Circuit decided two certified questions. First, the panel considered whether the doctrine of trespass to chattels should be extended to protect copies of websites displayed on a user’s screen. The panel said no. Copies of websites do not present a cognizable property interest for the purpose of a trespass to chattels claim because they are not capable of precise definition, are not capable of exclusive possession or control, and lack exclusivity. In so holding, the court distinguished Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003), which allowed a conversion claim over a domain name.

Second, the panel considered whether state law claims regarding how a website displays on a screen are preempted by the Copyright Act and found the claims preempted. The court held that these claims invoked the subject matter of federal copyright law because “a commercial website, like computer software, may qualify for copyright protection.” The Ninth Circuit also ruled that the rights asserted by Plaintiffs were equivalent to the ones provided by the Copyright Act because Google’s insertion of banners over Plaintiffs’ websites could implicate the § 106 rights of display, reproduction, or preparation of derivative works. Finally, the panel noted that claims of unjust enrichment and implied-in-law contract contained no extra elements that would rescue the claims from preemption.