Friday, July 17, 2015

What claims work when D allegedly drives P down in Google rank through copying?

Ryoo Dental, Inc. v. Han, 2015 WL 4208580, No. 15–308 (C.D. Cal. Jul. 9, 2015)
Ryoo Dental, a dental practice, had a website to promote its services, and allegedly spent considerable sums on “search engine optimization fees, photographing, editing, and updating content and maintaining its webpage.”  When Ryoo lost its first page search ranking on Google (for what search term?), it hired an SEO firm, which told Ryoo that Han, another dentist, had copied content from Ryoo’s site and put it on his own site, leading Google’s algorithm to penalize Ryoo’s site.  (Sounds like a DMCA takedown might’ve been a cheaper alternative to litigation, if SEO is the aim.)
Ryoo sued Han for copyright infringement and state-law torts, all of which the court here dismissed as preempted.  The subject matter of the state-law claims, the website, fell within the subject matter of copyright because it was a fixed work of authorship.  (Which is why, incidentally, saying that right of publicity claims based on distribution of fixed works don’t fall into copyright’s subject matter doesn’t make sense to me.)  So the only question was whether there were extra elements.
For conversion, no, because there was no allegedly appropriated tangible property, just the reproduction of website content, “indisputably intangible property.” Likewise for negligent interference with prospective economic advantage, because the alleged disruption of business consisted of Han’s alleged copying of Ryoo’s website.
False advertising and unfair competition received separate treatment, but they were essentially reverse passing off rather than passing off claims—Han wasn’t allegedly misrepresenting his services as Ryoo’s.  The court stated a rule that seems clearly Dastar-noncompliant: “‘Reverse passing off’ claims are preempted unless the plaintiff alleges bodily appropriation and seeks more than mere monetary damages,” neither of which are exceptions that appear in Dastar.  But Han did neither, so his claims were preempted anyway.
Claims for unjust enrichment failed because California has no separate cause of action based on unjust enrichment, and such a claim would be preempted anyway.  Ryoo argued that an accounting was necessary to determine damages, but this too was preempted to the extent related to the copyright claim, since “the Copyright Act already affords [plaintiff] an adequate means by which to calculate damages.”

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