UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BEST CARPET VALUES, INC.; No. 22-15899 THOMAS D. RUTLEDGE, on behalf of themselves and all others similarly D.C. No. situated, 5:20-cv-04700- EJD Plaintiffs-Appellees,

v. OPINION GOOGLE, LLC,

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 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. 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 David Kramer, Dale R. Bish, Wilson Sonsini Goodrich & Rosati, Palo Alto, California; Victor Jih, Fred A. Rowley, Jr., Wilson Sonsini Goodrich & Rosati, Los Angeles, California; Paul N. Harold, Wilson Sonsini Goodrich & Rosati, Washington, District of Columbia, for Appellant. J. Aaron Lawson, Edelson PC, San Francisco, California; Alexander Schmidt, Alexander H. Schmidt, Esq., Colts Neck, New Jersey, for Appellees. 4