Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 1 of 22
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`
`
`
`
`Plaintiffs-Appellees,
`
`BEST CARPET VALUES, INC.;
`THOMAS D. RUTLEDGE, on behalf
`of themselves and all others similarly
`situated,
`
`
`
` v.
`
`
`GOOGLE, LLC,
`
`
`
`
`
`
`No. 22-15899
`
`D.C. No.
`5:20-cv-04700-
`EJD
`
`
`OPINION
`
`
`
`
`
` Defendant-Appellant.
`
`Appeal from the United States District Court
`for the Northern District of California
`Edward J. Davila, District Judge, Presiding
`
`Argued and Submitted September 13, 2023
`San Francisco, California
`
`Filed January 11, 2024
`
`Before: J. Clifford Wallace, Sidney R. Thomas, and
`Danielle J. Forrest, Circuit Judges.
`
`Opinion by Judge Wallace
`
`
`
`
`
`
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 2 of 22
`
`2
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`SUMMARY*
`
`California Law
`
`
`
`
`
`The panel reversed the district court’s denial of Google,
`LLC’s motion to dismiss plaintiffs’ putative class action
`asserting California state-law claims arising from Google’s
`placement of search results on copies of their websites.
`
`Plaintiffs challenged the way Google displayed websites
`in Search App on Android phones from March 2018 to April
`2020. Plaintiffs argued that by displaying frame and half-
`page digests, Google occupied valuable space on the
`websites of class members that Google should have paid for
`because it obtained all the benefits of advertising from use
`of that space. The district court certified for interlocutory
`review four questions that were potentially dispositive of the
`case.
`
`Addressing plaintiffs’ trespass to chattels claim and the
`first certified question, the panel held that Kremen v. Cohen,
`37 F.3d 1024 (9th Cir. 2003), should not be extended to
`protect as chattel the copies of websites displayed on a user’s
`screen. An application of Kremen’s three-part test led to the
`conclusion that a cognizable property right did not exist in a
`website copy. Accordingly, plaintiffs’ trespass to chattels
`claim must be dismissed.
`
`Addressing plaintiffs’ state-law implied-in-law contract
`and unjust enrichment claim and the third certified question,
`the panel held that website owners cannot invoke state law
`
`
`* This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 3 of 22
`
`
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`3
`
`to control how their websites are displayed on a user’s screen
`without preemption by federal copyright law. The panel
`applied a two-part test to determine whether plaintiffs’ state-
`law claim was preempted by the Copyright Act. Applying
`step one, the manner that plaintiffs’ websites were displayed
`fell within the subject matter of federal copyright law.
`Applying step two, the rights asserted by plaintiffs’ implied-
`in-law contract and unjust enrichment claim were equivalent
`to the rights provided by federal copyright law. In addition,
`plaintiff’s state-law claim did not carry “an extra element”
`as compared to a federal copyright claim. Accordingly, the
`panel concluded
`that plaintiffs’ state-law claim was
`preempted by federal copyright law.
`
`Because the first and third question were dispositive, the
`panel did not reach the two remaining certified questions.
`The panel reversed the order denying Google’s motion to
`dismiss, and remanded with instructions to dismiss.
`
`
`
`
`COUNSEL
`
`Fred A. Rowley Jr. (argued) and Victor H. Jih, Wilson
`Sonsini Goodrich & Rosati, Los Angeles, California; David
`Kramer, Dylan Byrd, and Dale R. Bish, Wilson Sonsini
`Goodrich & Rosati, Palo Alto, California; Paul N. Harold,
`Wilson Sonsini Goodrich & Rosati, Washington, D.C.; Ali
`Reza Rabbani, Paul Hastings LLP, Los Angeles, California;
`for Defendant- Appellant.
`
`John A. Lawson (argued), Edelson PC, San Francisco,
`California; Ryan D. Andrews and Roger J. Perlstadt,
`Edelson PC, Chicago, Illinois; Alexander H. Schmidt,
`Alexander H. Schmidt, Colts Neck, New Jersey; Eric J.
`
`
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 4 of 22
`
`4
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`Artrip, Mastando & Artrip LLC, Huntsville, Alabama; Asil
`Hashiri, Mashiri Law Firm APC, San Diego, California; for
`Plaintiffs-Appellees.
`
`
`
`OPINION
`
`WALLACE, Circuit Judge:
`
`Google, LLC (Google) appeals from the district court’s
`denial of its motion to dismiss Plaintiffs’ putative class
`action asserting California state-law claims arising from
`Google’s placement of search results on copies of their
`websites. We have jurisdiction over this timely interlocutory
`appeal pursuant to 28 U.S.C. § 1292(b). We reverse and
`remand with instructions to dismiss the Complaint.
`
`I.
`
`“At the motion to dismiss stage, we assume factual
`allegations stated in the Complaint filed by Plaintiff[s] to be
`true.” Doe v. Internet Brands, Inc., 824 F.3d 846, 848 (9th
`Cir. 2016). Google provides internet services and products,
`most famously the google.com search engine, the Android
`mobile operating system, and the web browser Google
`Chrome. Google integrates “Search App” into its Android
`mobile operating system. The Search App enables a user to
`conduct internet searches directly from the home screen of
`their Android phone without opening a web browser. During
`the class period, Search App typically appeared as a search
`bar at the top of the Android home screen.
`
`When a user typed a website address into the browser,
`Search App (like most web browsers) connected to the
`server hosting the website and “obtain[ed] a copy of the
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 5 of 22
`
`
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`5
`
`requested website page from the host web server.” Search
`App then “deliver[ed] the copy to the user by translating the
`website’s codes and recreating the website page on the user’s
`. . . mobile device screen.” If a user clicked a link on the
`page, the click was “transmitted back over the internet to the
`host web server, from which the hosted website [could] then
`transmit responsive information,” such as a different website
`page. Plaintiffs explicitly alleged that “Google did not
`trespass on the source websites located on [Plaintiffs’] web
`servers.”
`
`Plaintiffs challenge the way Google displayed websites
`in Search App on Android phones from March 2018 to April
`2020. During this period, Search App displayed the
`requested website page with a “frame” at the bottom of the
`page stating, for example, “VIEW 15 RELATED PAGES.”
`The frame gave the user the option of clicking a button to
`expand the frame to display half-page banners advertising
`related websites, occupying up to eighty percent of the
`screen size and shadowing the remaining twenty percent.
`Alternatively, the user could scroll through the website to
`which they navigated as normal with the frame remaining in
`place at the bottom of the screen. The banners were not
`advertisements for which Google paid Plaintiffs, but instead
`results automatically generated by Google’s algorithms and
`placed there without Plaintiffs’ permission. Plaintiffs
`alleged that the “VIEW 15 RELATED PAGES” frame and
`(when expanded by the user) the half-page digests blocked
`important content on their websites. In the case of putative
`class representative Best Carpet Values, Inc. (Best Carpet),
`the results at times displayed in the frame included links to
`websites owned by Best Carpet’s direct competitors and
`negative news stories about Best Carpet’s owner. Plaintiffs
`argue that by displaying the frame and half-page digests,
`
`
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 6 of 22
`
`6
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`Google “occup[ied] valuable space” on the websites of class
`members that Google should have paid for because it
`“obtain[ed] all the benefits of advertising” from use of that
`space.
`
`Plaintiffs filed a putative class action, asserting
`California state law claims for trespass to chattels, implied-
`in-law contract and unjust enrichment, and violation of
`California’s Unfair Competition Law (UCL), Cal. Bus. &
`Prof. Code § 17200 et seq. Google moved to dismiss the
`operative Complaint for failure to state a claim upon which
`relief could be granted. The district court, drawing in part
`upon our decision in Kremen v. Cohen, 337 F.3d 1024 (9th
`Cir. 2003), mostly denied Google’s motion to dismiss.1 In
`response, Google moved to stay the proceedings and to
`certify the order for immediate interlocutory appeal under 28
`U.S.C. § 1292(b). The district court granted Google’s
`motions, and we granted Google’s permission to file this
`appeal.
`
`II.
`
`“We review de novo a district court’s denial of a motion
`to dismiss under Rule 12(b)(6).” Olympic Forest Coal. v.
`Coast Seafoods Co., 884 F.3d 901, 905 (9th Cir. 2018).
`
`III.
`
`The district court certified for our interlocutory review
`four “novel and difficult” questions of law that it believed
`were potentially dispositive of the case. We conclude that
`
`
`1 The district court dismissed the UCL claim under the “unfair” part but
`left intact the claim under the “unlawful” part.
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 7 of 22
`
`
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`7
`
`the first and third questions are indeed dispositive, thus we
`do not address the second or fourth.2
`
`A.
`
`As to the first question, “[w]hether [Kremen] should be
`extended to protect as chattel the copies of websites
`displayed on a user’s screen,” we answer in the negative.3
`
`Trespass to chattels, “[d]ubbed by Prosser the ‘little
`brother of conversion,’ . . . allows recovery for interferences
`with possession of personal property ‘not sufficiently
`important to be classed as conversion.’” Intel Corp. v.
`Hamidi, 30 Cal. 4th 1342, 1350 (2003), citing W. Page
`Keeton, et al., Prosser and Keeton on Law of Torts § 14, pp.
`85–86 (5th ed. 1984). Although California law recognizes
`“property” in “every intangible benefit and prerogative
`susceptible of possession or disposition,” Holistic
`Supplements, L.L.C. v. Stark, 61 Cal. App. 5th 530, 548
`(2021) (internal quotations and citation omitted), it does not
`similarly call courts to use property law “to displace other,
`more suitable law” in every instance. Silvaco Data Sys. v.
`Intel Corp., 184 Cal. App. 4th 210, 239 n.21 (2010) (internal
`citation and quotation marks omitted).
`
`We agree with the district court that the “chattels” at
`issue here are the copies of Plaintiffs’ websites. Plaintiffs
`
`
`2 The questions not reached are: “(2) Whether trespass to chattels can be
`based on ‘functional harm or disruption’ to a website even though there
`is no ‘physical harm to their websites’” and “(4) Whether the risk
`consumers may be confused or misled by deceptive advertising defeats
`Google’s First Amendment right to suggest search results to users
`interested in viewing a particular website.”
`
`3 Because Plaintiffs’ trespass to chattels claim is without merit, we do
`not address whether it is preempted by the Copyright Act.
`
`
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 8 of 22
`
`8
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`alleged so in their Complaint: “Website owners likewise
`have property rights . . . in the copies of their websites that
`appear on internet users’ monitors and screens.” Plaintiffs’
`attempt on appeal to eliminate the distinction between their
`proprietary websites and the copies of such websites is
`rejected. See Airs Aromatics LLC v. Op. Victoria’s Secret
`Stores Brand Mgmt., Inc., 744 F.3d 595, 600 (9th Cir. 2014)
`(“A party cannot amend pleadings to directly contradic[t] an
`assertion made in the same proceeding.”) (internal quotation
`marks and citation omitted, alteration in original). We thus
`root our trespass to chattels analysis in Plaintiffs’ website
`copies.
`
`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. Hamidi, 30 Cal. 4th at 1350–51
`(emphasis added), quoting Thrifty–Tel, Inc. v. Bezenek, 46
`Cal. App. 4th 1559, 1566 (1996). 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. See Whitaker v. Tesla Motors,
`Inc., 985 F.3d 1173, 1176 (9th Cir. 2021) (stating an
`adequate complaint must contain “well-pleaded facts, not
`legal conclusions”). 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.
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 9 of 22
`
`
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`9
`
`Nor do Plaintiffs allege a cognizable property interest in
`the website copies that may serve as the basis for a trespass
`to chattels claim.4 The district court’s analysis to the
`contrary misreads both the governing law and Plaintiffs’
`Complaint. The district court reasoned that “[c]onsistent
`with [Kremen] and subsequently issued cases . . . a website
`can be the subject of a trespass to chattels claim.” In
`Kremen, we held that the California law of conversion
`applied to an internet domain name, not the website itself or
`other intangible assets attendant to the website. See 337 F.3d
`at 1030. And Plaintiffs’ Complaint highlights that a website
`copy and its domain name are different concepts, explaining
`that “[a] website is a digital document built with software
`and housed on a computer called a ‘web server,’ which is
`owned or controlled in part by the website’s owner” while a
`domain name is a unique identifier “which enables an
`internet user to find the web server on which the website
`resides.” For these reasons, the website copies are the proper
`focus of the property-interest inquiry.
`
`The district court similarly erred in concluding that
`Plaintiffs have a cognizable property interest in website
`copies. In Kremen, we applied the following three-part test
`to conclude that a property right existed in a domain name:
`“First, there must be an interest capable of precise definition;
`
`
`4 Contrary to Plaintiffs’ assertion, Google did not waive its argument
`against Plaintiffs’ property interest in the website copies. The district
`court’s certification order granted Google permission to seek our review
`on the question of whether Kremen “should be extended to protect as
`chattel the copies of websites displayed on a user’s screen.” Google’s
`contention that Plaintiffs do not allege a cognizable property interest in
`the website copies, one of the elements of a trespass to chattels claim,
`Hamidi, 30 Cal. 4th at 1350–51, sits comfortably within the scope of the
`district court’s order.
`
`
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 10 of 22
`
`10
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`second, it must be capable of exclusive possession or
`control; and third, the putative owner must have established
`a legitimate claim to exclusivity.” 337 F.3d at 1030, quoting
`G.S. Rasmussen & Assocs., Inc. v. Kalitta Flying Serv., Inc.,
`958 F.2d 896, 903 (9th Cir. 1992). Decades later, this “test
`[still] stakes out useful guideposts” for determining the
`existence of a property right when addressing a question
`involving intangible property. Holistic Supplements, 61 Cal.
`App. 5th at 553.
`
`Application of Kremen’s three-part test here leads to the
`conclusion that a cognizable property right does not exist in
`a website copy.
`
`First, a website copy is not “capable of precise
`definition” because there is no single way to display a
`website copy. Kremen, 337 F.3d at 1030. As Plaintiffs
`acknowledge in the Complaint, a web browser “obtains a
`copy of the requested website page . . . [and] translate[s] the
`website’s codes [to] recreat[e] the website page on the user’s
`computer monitor or mobile device screen.” This
`translation of website code into a visual appearance
`necessarily varies across browsers and devices. Plaintiffs
`respond that the lack of a fixed display does not defeat their
`property interest. Although in Kremen we held that updating
`records in a document did not defeat a finding of a property
`interest, id. at 1035, Plaintiffs’ argument elides the core
`inquiry of the “capable of precise definition” part. California
`law requires that the property interest be “well-defined” and
`“like staking a claim to a plot of land at the title office.” Id.
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 11 of 22
`
`
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`11
`
`at 1030. A website copy possesses neither of these
`qualities.5
`
`Second, a website copy is not “capable of exclusive
`possession or control.” Id. Plaintiffs have not alleged, nor
`could they allege, that they retain control over the copies of
`their websites that are generated and sent to users’ devices.
`Unlike a domain name, where the registrant “decides where
`on the Internet those who invoke that particular name—
`whether by typing it into their web browsers, by following a
`hyperlink, or by other means—are sent[,]” id., once the
`website copy is generated and sent to the user’s device, users
`have control over what to do with it—whether to click on a
`link on Plaintiffs’ sites, resize the page, navigate away from
`the page themselves, or click on one of the links provided in
`the results.
`
`Plaintiffs’ invocation of Cal. Civ. Code § 655 does not
`remedy this lack of control. Section 655 states in relevant
`part: “There may be ownership of all inanimate things which
`are capable of appropriation or of manual delivery; . . . of
`such products of labor or skill as the composition of an
`author, the good will of a business, trade marks and signs,
`and of rights created or granted by statute.” Cal. Civ. Code
`§ 655. But section 655 merely suggests what kinds of
`property may be owned. The statute says nothing about how
`such property interests are defined, which is a necessary
`exercise for determining whether that property may serve as
`
`
`5 Plaintiffs claim a particular interest in the portion of the screen (in their
`words, “advertising space”) that is occupied by the Search App’s
`leaderboard. But whether that space even exists and how it is displayed
`rely on how the website’s codes are translated as well as the user’s
`choices.
`
`
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 12 of 22
`
`12
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`the basis of a state-law claim. See Holistic Supplements, 61
`Cal. App. 5th at 548, 553.
`
`Third and finally, there is no “legitimate claim to
`exclusivity” over website copies. Kremen, 337 F.3d at 1030.
`Plaintiffs themselves recognize that they do not control how
`their websites are displayed on different devices or web
`browsers. This lack of exclusivity renders website copies
`fundamentally different from other types of intangible
`property recognized as being subject to California state-law
`property claims. See G.S. Rasmussen, 958 F.2d at 903
`(regulatory certificate); Payne v. Elliot, 54 Cal. 339, 342
`(1880) (corporate stock); Holistic Supplements, 61 Cal. App.
`5th at 553 (tax registration certificate); Welco Elecs., Inc. v.
`Mora, 223 Cal. App. 4th 202, 211 (2014) (credit line from a
`credit card company); Fremont Indem. Co. v. Fremont Gen.
`Corp., 148 Cal. App. 4th 97, 125 (2007) (business’s net
`operating loss); Golden v. State, 133 Cal. App. 2d 640, 643
`(1955) (liquor license). Because Plaintiffs do not control
`how the copies of their websites are shown in different
`environments, they have no legitimate claim to exclusivity
`over those copies.
`
`Our conclusion necessarily follows from property law’s
`core tenets. “[P]roperty law has long protected an owner’s
`expectation that he will be relatively undisturbed at least in
`the possession of his property.” Loretto v. Teleprompter
`Manhattan CTV Corp., 458 U.S. 419, 436 (1982). These
`“[g]eneral principles of property law require that a property
`owner have the legal right to exclude others from use and
`enjoyment of that property.” Alderson v. United States, 686
`F.3d 791, 796 (9th Cir. 2012). Without such legal
`entitlement in this case, property law provides no remedy for
`an alleged trespass to chattels claim.
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 13 of 22
`
`
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`13
`
`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.6 The district court erred
`in allowing Plaintiffs’ case to proceed on this theory.
`
`B.
`
`Having concluded that Plaintiffs’ trespass to chattels
`claim must be dismissed, we turn to Plaintiffs’ state-law
`implied-in-law contract and unjust enrichment claim. This
`claim, and Google’s argument
`in response
`thereto,
`implicates the third question certified by the district court for
`interlocutory appeal: “Whether website owners can invoke
`state law to control how their websites are displayed on a
`user’s screen without preemption by federal copyright law.”
`Again, we answer the certified question in the negative.
`
`As we have previously explained, “[t]he Copyright Act
`[(the Act)] affords copyright owners the ‘exclusive rights’ to
`display, perform, reproduce, or distribute copies of a
`copyrighted work, to authorize others to do those things, and
`to prepare derivative works based upon the copyrighted
`work.” Maloney v. T3Media, Inc., 853 F.3d 1004, 1010 (9th
`Cir. 2017), citing 17 U.S.C. § 106. The Act provides that
`“all legal or equitable rights that are equivalent to any of the
`exclusive rights within the general scope of copyright as
`specified by section 106 . . . and come within the subject
`matter of copyright as specified by sections 102 and 103
`. . . are governed exclusively by this title.” 17 U.S.C.
`§ 301(a). In other words, section 301(a) works “to preempt
`and abolish any rights under the common law or statutes of
`a State that are equivalent to copyright and that extend to
`
`
`6 We therefore have no reason to revisit Kremen’s discussion of the
`“merger rule” under California law. See 337 F.3d at 1033.
`
`
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 14 of 22
`
`14
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`works,” if the rights in question fall “within the scope of the
`Federal copyright law.” Maloney, 853 F.3d at 1010, quoting
`H.R. Rep. No. 94–1476, at 130 (1976).
`
`“We have adopted a two-part test to determine whether
`a state law claim is preempted by the Act.” Laws v. Sony
`Music Entm’t, Inc., 448 F.3d 1134, 1137 (9th Cir. 2006).
`“First, we decide whether the subject matter of the state law
`claim falls within the subject matter of copyright as
`described in 17 U.S.C. §§ 102 and 103. Second, assuming it
`does, we determine whether the rights asserted under state
`law are equivalent to the rights contained in 17 U.S.C. § 106,
`which articulates the exclusive rights of copyright holders.”
`Maloney, 853 F.3d at 1010 (internal citations and quotation
`marks omitted).
`
`We agree with the district court that step one of our
`preemption test is satisfied here because the manner that
`Plaintiffs’ websites are displayed falls within the subject
`matter of federal copyright law.
`
`“[T]he subject matter of copyright encompasses
`‘original works of authorship fixed in any tangible medium
`of expression, now known or later developed, from which
`they can be perceived,
`reproduced, or otherwise
`communicated, either directly or with the aid of a machine
`or device.’” Close v. Sotheby’s, Inc., 894 F.3d 1061, 1069
`(9th Cir. 2018), quoting 17 U.S.C. § 102(a). “A work need
`not consist entirely of copyrightable material in order to
`meet the subject matter requirement, but instead need only
`fit into one of the copyrightable categories in a broad sense.”
`Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296,
`305 (2d Cir. 2004).
`
`Plaintiffs concede, and Google agrees, that commercial
`websites are copyrightable. We have not directly addressed
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 15 of 22
`
`
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`15
`
`this question, but several district courts in our circuit have
`adopted the parties’ position. See, e.g., Ticketmaster L.L.C.
`v. Prestige Entm’t W., Inc., 315 F. Supp. 3d 1147, 1160–61
`(C.D. Cal. 2018); Blue Nile, Inc. v. Ice.com, Inc., 478 F.
`Supp. 2d 1240, 1248 (W.D. Wash. 2007).
`
`We previously recognized that federal copyright law
`extends to “works of authorship” beyond those works
`enumerated in 17 U.S.C. § 102(a). For example, we held
`that computer software, including “the literal components”
`like “the source and object code,” is subject to copyright
`protection and that “the non-literal components of a
`program, including the structure, sequence and organization
`and user interface” may also be protected “depend[ing] on
`whether . . . the component in question qualifies as an
`expression of an idea, or an idea itself.” Johnson Controls,
`Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1175 (9th
`Cir. 1989). We later added that computer software’s
`“dynamic non-literal elements” (users’ real-time experience)
`were subject to copyright protection. MDY Indus., LLC v.
`Blizzard Entm’t, Inc., 629 F.3d 928, 954 (9th Cir. 2010). The
`Supreme Court has endorsed our understanding of computer
`software’s copyrightability. See Google LLC v. Oracle Am.,
`Inc., 141 S. Ct. 1183, 1196 (2021).
`
`A commercial website similarly qualifies for federal
`copyright protection even though it is not explicitly
`mentioned in section 102(a). A website is a “work[] of
`authorship fixed in any tangible medium of expression.” 17
`U.S.C. § 102(a). Although the exact appearance of the
`website may vary across devices, the website’s content does
`not change unless and until the website creator makes a
`change to the underlying source code. See Hunley v.
`Instagram, 73 F.4th 1060, 1063 (9th Cir. 2023). Similarly,
`websites possess copyrightable literal elements (source
`
`
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 16 of 22
`
`16
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`code); non-literal elements (including “logos, images, fonts,
`videos and sound effects”); and dynamic non-literal
`elements (such as the experience of viewing the website).
`Ticketmaster, 315 F. Supp. 3d at 1160–61, citing MDY
`Indus., 629 F.3d at 952. Furthermore, the website’s content
`is “perceived, reproduced, or otherwise communicated”
`“with the aid of a machine or device,” 17 U.S.C. § 102(a),
`because an internet browser connects to the website’s server,
`translates the website’s code, and recreates the content
`specified by the code on the user’s device. See Perfect 10,
`Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1155–56 (9th Cir.
`2007). Therefore, we conclude that a commercial website,
`like computer software, may qualify for copyright
`protection.
`
`On appeal, Plaintiffs attempt to recast the subject matter
`of their claim as “Google’s advertising” and “the advertising
`space on Plaintiffs’ websites” rather than the websites
`themselves. But again, Plaintiffs cannot escape their
`Complaint, which alleges that Search App “place[d]
`Google’s leaderboard and half page banner ads on the copies
`of the[ir] website pages.” The district court properly held
`that Plaintiffs alleged rights within the subject matter of
`federal copyright law when they challenged the manner that
`Google displayed Plaintiffs’ websites. Plaintiffs’ analogies
`to advertising outside of a theater or in front of a work of art
`similarly miss the mark. As we have explained, “the scope
`of the subject matter of copyright law is broader than the
`protections it affords.” Montz v. Pilgrim Films & Tel., Inc.,
`649 F.3d 975, 979 (9th Cir. 2011) (en banc), citing 4
`Melville B. Nimmer & David Nimmer, Nimmer on
`Copyright § 19D.03[A][2][b] (rev. ed. 2010). For this
`reason, our preemption analysis focuses on whether
`Plaintiffs’ Complaint invokes the subject matter of federal
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 17 of 22
`
`
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`17
`
`copyright law—it does—rather than whether Search App’s
`advertisements
`infringe on Plaintiffs’ copyrightable
`websites.
`
`However, at step two of our preemption test, the district
`court erred in determining that the rights asserted in
`Plaintiffs’ implied-in-law contract and unjust enrichment
`claim were not equivalent to the rights provided under 17
`U.S.C. § 106.
`
`Section 106 grants copyright owners the “‘exclusive
`rights’ to display, perform, reproduce, or distribute copies of
`a copyrighted work, to authorize others to do those things,
`and to prepare derivative works based upon the copyrighted
`work.” Maloney, 853 F.3d at 1019, quoting 17 U.S.C. § 106.
`“To survive preemption, the state cause of action must
`protect rights which are qualitatively different from the
`copyright rights.” Id. (citation omitted). In this way, “[t]he
`state claim must have an extra element which changes the
`nature of the action.” Laws, 448 F.3d at 1143, quoting Del
`Madera Props. v. Rhodes & Gardner, 820 F.2d 973, 977 (9th
`Cir. 1987).
`
`The district court reasoned that Plaintiffs’ claim was not
`preempted because “Plaintiffs are not asserting infringement
`of any right to the reproduction, performance, distribution,
`or display of their websites.” But “[c]opyrightability is a
`different question from infringement and is determined on
`different legal principles.” SAS Inst., Inc. v. World
`Programming Ltd., 64 F.4th 1319, 1338 (Fed. Cir. 2023)
`(Newman, J., dissenting). Here, the district court improperly
`focused on the nature of the complained of action when
`copyrightability—and by extension,
`the preemption
`analysis—must focus on the nature of the right at issue.
`
`
`
`

`

`Case: 22-15899, 01/11/2024, ID: 12846802, DktEntry: 55, Page 18 of 22
`
`18
`
`BEST CARPET VALUES, INC. V. GOOGLE LLC
`
`We need not decide whether it is more appropriate to
`characterize Plaintiffs’ Complaint as implicating rights to (a)
`display or reproduce copies or (b) prepare derivative works
`because the Complaint invokes both rights and both rights
`are recognized under federal copyright law.7 Plaintiffs
`alleged that Search App “obtains a copy of the requested
`website page from the host web server and delivers the copy
`to the user by translating the website’s codes” and then
`“recreat[es] the website page on the user’s . . . mobile device
`screen.”
` Displaying and reproducing a copy of a
`copyrighted work (Plaintiffs’ website) falls squarely within
`the scope of 17 U.S.C. § 106. See MDY Indus., 629 F.3d at
`938.
` Plaintiffs
`further alleged
`that Search App
`“superimpose[ed] advertisements on
`their websites’
`homepages and other landing pages” when displayed on
`screens. Google’s reproductions of Plaintiffs’ websites,
`which necessarily vary in appearance on users’ screens, can
`be recognized as an act of “prepar[ing]” “derivative works.”
`See Jarvis v. K2 Inc., 486 F.3d 526, 531–32 (9th Cir. 2007)
`(holding as derivative works collage ads where the defendant
`“shrank, expanded, distorted, overlaid and otherwise edited
`the [plaintiff’s] original images, while also combining them
`with photos taken by other photographers, additional
`graphics, the [defendant’s] logo and marketing slogans.”).
`
`
`7 As one treatise has suggested, the right to prepare “derivative works”
`may be superfluous in most cases because the statute defines a
`“derivative work” as one “based upon one or more preexisting works,”
`in other words, a copy. 2 Nimmer on Copyright § 8.09[A][1], citing 17
`U.S.C. § 101; see also Benny v. Loew’s, Inc., 239 F.2d 532 (9th Cir.
`1956)