Case 3:20-cv-08437-LB Document 46 Filed 06/15/21 Page 1 of 12
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`San Francisco Division
`
`MEREDITH CALLAHAN, et al.,
`
`Plaintiffs,
`
`v.
`
`ANCESTRY.COM INC., et al.,
`
`Defendants.
`
`Case No. 20-cv-08437-LB
`
`
`ORDER DISMISSING FIRST
`AMENDED COMPLAINT
`
`Re: ECF No. 33
`
`
`
`INTRODUCTION
`
`The plaintiffs are California residents who sued Ancestry.com — individually and on behalf of a
`
`putative California class — for using their decades-old yearbook records to solicit paying subscribers.
`
`The plaintiffs claim (1) misappropriation of their likenesses, in violation of California’s Right of
`
`Publicity Law, Cal. Civ. Code § 3344, (2) unlawful and unfair business practices, in violation of
`
`California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, (3) intrusion upon seclusion,
`
`in violation of California common law, and (4) unjust enrichment resulting from Ancestry’s selling
`
`their personal information.
`
`The court dismissed the first complaint for lack of Article III standing because use of data to
`
`solicit customers — without something more, such as an inference that the profiled persons
`
`personally endorsed Ancestry’s product — is not injury in fact. Also, Ancestry did not create the
`
`third-party content and thus was immune from liability under the Communications Decency Act. The
`
`ORDER – No. 20-cv-08437-LB
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-08437-LB Document 46 Filed 06/15/21 Page 2 of 12
`
`
`
`plaintiffs amended their complaint, raising the same claims and adding allegations of harm that they
`
`suffered: emotional harm from Ancestry’s profiting from their records, lost time spent investigating
`
`Ancestry’s use of their records, and theft of their intellectual property. Ancestry moved to dismiss,
`
`again for lack of standing and under the Communications Decency Act. The plaintiffs’ new
`
`allegations do not change the analysis in the court’s earlier order: the plaintiffs do not have Article III
`
`standing, and Ancestry is immune from liability under the Communications Decency Act. The court
`
`dismisses the amended complaint.
`
`STATEMENT
`
`Ancestry makes money by selling subscription plans to its databases of personal and historical
`
`information, including its Yearbook database, which has yearbook records. Ancestry solicits new
`
`subscribers by sending promotional emails. For example, to solicit paying subscribers to the
`
`Yearbook database, Ancestry might send a user an email that has yearbook information of
`
`someone that Ancestry identifies as a potential former classmate.1 The amended complaint adds
`
`new allegations of the plaintiffs’ injuries: anger and distress from Ancestry’s profiting from the
`
`records, their lost time investigating Ancestry’s use (such as the five hours that named plaintiff
`
`Geoffrey Abraham spent), and theft of their intellectual property.2 The court held a hearing on
`
`Ancestry’s renewed motion to dismiss on June 10, 2021. All parties consented to magistrate-judge
`
`jurisdiction under 28 U.S.C. § 636. The court has subject-matter jurisdiction under the Class
`
`Action Fairness Act, 28 U.S.C. § 1332(d). 3
`
`
`
`
`1 Order – ECF No. 30 at 2–4 (summarizing Ancestry’s business model). This order incorporates the
`summary by this reference because many allegations in the initial and amended complaints are the same.
`See Blackline – ECF No. 32-1. Citations refer to material in the Electronic Case File (ECF); pinpoint
`citations are to the ECF-generated page numbers at the top of documents.
`2 First Am. Compl. (FAC) – ECF No. 32 at 8 (¶¶ 24–25), 18 (¶ 37), 19 (¶ 45), 27 (¶¶ 57, 59), 32 (¶ 76).
`3 Id. at 5–6 (¶ 14); Consents – ECF Nos. 10, 15.
`
`ORDER – No. 20-cv-08437-LB
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-08437-LB Document 46 Filed 06/15/21 Page 3 of 12
`
`
`
`1. Rule 12(b)(1)
`
`STANDARD OF REVIEW
`
`A complaint must contain a short and plain statement of the ground for the court’s jurisdiction.
`
`Fed. R. Civ. P. 8(a)(1). The plaintiffs have the burden of establishing jurisdiction. Kokkonen v.
`
`Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Farmers Ins. Exch. v. Portage La
`
`Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990).
`
`A defendant’s Rule 12(b)(1) jurisdictional attack can be facial or factual. White v. Lee, 227 F.3d
`
`1214, 1242 (9th Cir. 2000). “A ‘facial’ attack asserts that a complaint’s allegations are themselves
`
`insufficient to invoke jurisdiction, while a ‘factual’ attack asserts that the complaint’s allegations,
`
`though adequate on their face to invoke jurisdiction, are untrue.” Courthouse News Serv. v. Planet,
`
`750 F.3d 776, 780 n.3 (9th Cir. 2014). This is a facial attack. The court thus “accept[s] all allegations
`
`of fact in the complaint as true and construe[s] them in the light most favorable to the plaintiff[].”
`
`Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).
`
`Ancestry contends that the plaintiffs lack standing. Standing pertains to the court’s subject-
`
`matter jurisdiction and thus is properly raised in a Rule 12(b)(1) motion to dismiss. Chandler v.
`
`State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121–22 (9th Cir. 2010).
`
`Dismissal of a complaint without leave to amend should be granted only if the jurisdictional
`
`defect cannot be cured by amendment. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,
`
`1052 (9th Cir. 2003).
`
`
`
`2. Rule 12(b)(6)
`
`A complaint must contain a “short and plain statement of the claim showing that the pleader is
`
`entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon
`
`which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
`
`complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide the
`
`grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic
`
`recitation of the elements of a cause of action will not do. Factual allegations must be enough to
`
`raise a claim for relief above the speculative level.” Twombly, 550 U.S. at 555 (cleaned up).
`
`ORDER – No. 20-cv-08437-LB
`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-08437-LB Document 46 Filed 06/15/21 Page 4 of 12
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`To survive a motion to dismiss, a complaint must contain sufficient factual allegations, which
`
`when accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
`
`U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that
`
`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
`
`alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
`
`more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint
`
`pleads facts that are merely consistent with a defendant’s liability, it stops short of the line
`
`between possibility and plausibility of ‘entitlement to relief.’” Id. (cleaned up).
`
`If a court dismisses a complaint, it should give leave to amend unless the “pleading could not
`
`possibly be cured by the allegation of other facts.” United States v. United Healthcare Ins. Co.,
`
`848 F.3d 1161, 1182 (9th Cir. 2016) (cleaned up).
`
`
`
`ANALYSIS
`
`The court dismisses the claims for lack of Article III standing and, alternatively, because
`
`Ancestry is immune from liability under § 230(c)(1) of the Communications Decency Act.
`
`
`
`1. Article III Standing
`
`“The ‘irreducible constitutional minimum’ of standing consists of three elements.” Spokeo,
`
`Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
`
`560 (1992)). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to
`
`the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable
`
`judicial decision.” Id. “The plaintiff, as the party invoking federal jurisdiction, bears the burden of
`
`establishing these elements.” Id. (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)).
`
`“Where, as here, a case is at the pleading stage, the plaintiff must clearly allege facts
`
`demonstrating’ each element.” Id. (cleaned up). “[S]tanding in federal court is a question of
`
`federal law, not state law.” Hollingsworth v. Perry, 570 U.S. 693, 715 (2013).
`
`Ancestry contends that the plaintiffs have not established injury in fact. “To establish injury in
`
`fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that
`
`ORDER – No. 20-cv-08437-LB
`
`4
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-08437-LB Document 46 Filed 06/15/21 Page 5 of 12
`
`
`
`is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo,
`
`136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). “For an injury to be ‘particularized,’ it ‘must
`
`affect the plaintiff in a personal and individual way.’” Id. (quoting Lujan, 504 U.S. at 560 n.1). For
`
`an injury to be concrete, it “must be ‘de facto’; that is, it must actually exist . . . [and be] ‘real,’
`
`and not ‘abstract.’” Id. (citing dictionaries). “‘Concrete’ is not . . . necessarily synonymous with
`
`‘tangible.’ Although tangible injuries are perhaps easier to recognize, . . . intangible injuries can
`
`nevertheless be concrete.” Id. at 1549 (cleaned up).
`
`The plaintiffs allege the following injuries: (1) Ancestry’s use of their records violated their
`
`right to privacy under California Civil Code § 3344, which prohibits use of their names,
`
`photographs, and likenesses without their written permission; (2) Ancestry harmed them by using
`
`their records to obtain paid subscribers, which is more than mere disclosure and has provable
`
`commercial value; and (3) their emotional distress from Ancestry’s profiting from the records,
`
`their lost time investigating Ancestry’s use, and theft of their intellectual property.4 The court
`
`previously held that Ancestry’s use of the records for profit was not injury that conveyed Article
`
`III standing. The new grounds do not establish injury either.
`
`1.1 Use of Records
`
`First, the court previously rejected the plaintiffs’ argument that Ancestry’s use of the public
`
`profiles to solicit paying subscribers establishes injury. This use — standing alone — does not
`
`establish injury, even though Ancestry profits from the use.5 There needs to be more than the
`
`statutory injury. In Fraley and C.M.D., for example, Facebook marketed products by suggesting
`
`that users who “liked” a product were endorsing it. Fraley v. Facebook, Inc., 830 F. Supp. 2d 785,
`
`791–92, 797–99 (N.D. Cal. 2011); C.M.D. v. Facebook, Inc., No. C 12-1216 RS, 2014 WL
`
`1266291, at *1–*2 (N.D. Cal. Mar. 26, 2014). Nothing here approximates the Fraley plaintiffs’
`
`property interest in the value of their endorsement. And as the court held previously, the plaintiffs
`
`
`4 FAC – ECF No. 32 at 8 (¶¶ 24–25), 17–18 (¶¶ 36–38), 19 (¶ 45), 26–27 (¶¶ 56–59), 32 (¶ 76).
`5 Order – ECF No. 30 at 7–9.
`
`ORDER – No. 20-cv-08437-LB
`
`5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-08437-LB Document 46 Filed 06/15/21 Page 6 of 12
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`do not show a commercial interest in their images that precluded the platform’s use of them to
`
`market the platform’s features.6
`
`Analogizing to other privacy statutes, the plaintiffs nonetheless contend that a violation of § 3344
`
`establishes standing without any additional injury.7 Violations of some statutes can establish
`
`standing. Examples are the California Invasion of Privacy Act, the Wiretap Act, and the Stored
`
`Communications Act. In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 598–99 (9th Cir.
`
`2020). The privacy rights protected by those statutes are fundamental, and intrusion on those rights is
`
`enough to subject a defendant to liability. Campbell v. Facebook, Inc., 951 F. 3d 1106, 1117 (9th Cir.
`
`2020). The statutes protect interests that are like those protected by the Fourth Amendment, which
`
`affords “the right of a man to retreat into his own home and there be free from unreasonable
`
`government intrusion.” Kyllo v. United States, 533 U.S. 27, 31 (2001) (quotation omitted). “Congress
`
`and the California legislature intended to protect these historical privacy rights when they passed the”
`
`acts. In re Facebook, 956 F.3d at 598. In contrast to those statutes, § 3344(a) imposes liability only
`
`where “persons [are] injured as a result” and thus requires injury.8 Even if § 3344 did not require
`
`injury beyond the statutory violation, the rights protected by § 3344 are not analogous to the
`
`fundamental and historical privacy rights in the California Invasion of Privacy Act, the Wiretap Act,
`
`and the Stored Communications Act. Thus, “Article III standing requires a concrete injury even in the
`
`context of a statutory violation.” Spokeo, 136 S. Ct. at 1549.
`
`To support their argument that they alleged injury sufficiently, the plaintiffs also cite a case
`
`from the Northern District of Illinois involving a similar privacy statute and a similar challenge to a
`
`website’s use of information to solicit customers.9 The case does not compel a different outcome
`
`because it did not address standing and in any event involved an allegation of financial harm. Lukis
`
`v. Whitepages, Inc., 454 F. Supp. 3d 746, 759 (N.D. Ill. 2020).
`
`
`6 Id. at 8 (analyzing Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090, 1092 (N.D. Cal. 2011)).
`7 Opp’n – ECF No. 38 at 11–13.
`8 Order – ECF No. 30 at 8.
`9 Opp’n – ECF No. 38 at 9, 15, 19 (citing Lukis v. Whitepages, Inc., 454 F. Supp. 3d 746 (N.D. Ill. 2020)).
`
`ORDER – No. 20-cv-08437-LB
`
`6
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-08437-LB Document 46 Filed 06/15/21 Page 7 of 12
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`The defendant in Lukis was a website that sold background reports compiled from private and
`
`public records. Id. at 751. To solicit paying customers, it provided a free preview of a limited report
`
`that contained enough information — middle initial, age range, phone number, current and previous
`
`addresses, and other information — to identify the person. Id. The plaintiffs, on behalf of a putative
`
`class, challenged — as a violation of the Illinois Right to Privacy Act — the website’s use of their
`
`information in free previews to solicit paying subscribers. Id. at 750, 756. The Act prohibits use of an
`
`individual’s identity for commercial purposes without the individual’s written consent. Id. at 760
`
`(citing 765 Ill. Comp. Stat. § 1075/30(a)). The website moved to dismiss, in part on the ground that
`
`its free previews merely amalgamated public information about the named plaintiff. Id. at 761. The
`
`court denied the motion on the ground that the statute covered “all aspects of a person’s identity,
`
`whether the information is derived from public or private sources.” Id. (citation omitted).
`
`The issue in Lukis was whether the plaintiff stated a claim, not whether she had standing. Also,
`
`unlike the plaintiffs in this case, the Lukis plaintiff alleged that she suffered financial harm from the
`
`disclosures, id. at 759, which can establish standing. Accord Kolebuck-Utz v. Whitepages, Inc., No.
`
`C21-0053-JCC, 2021 WL 1575219, at *2 (W.D. Wash. Apr. 22, 2021) (in case involving similar
`
`facts, the plaintiff stated a claim for a violation of Ohio’s right-of-privacy statute; court did not
`
`consider standing).10
`
`1.2 Emotional Distress, Investigation, and Theft of Intellectual Property
`
`Second, the plaintiffs’ emotional distress, time spent investigating Ancestry’s use, and theft of
`
`their intellectual property do not establish injury in fact either.
`
`The plaintiffs contend that they suffered mental anguish from Ancestry’s use of their likenesses
`
`to promote a product they knew nothing about, quoting Miller v. Collectors Universe: “A plaintiff’s
`
`knowledge of commercial loss and/or defamation may be a component of mental harm, disturbing
`
`one’s peace of mind.”11 159 Cal. App. 4th 988, 1006 n.12 (2008). There is no commercial loss or
`
`defamation here. If there were, then there would be injury that established Article III standing.
`
`
`10 Statement of Recent Decision – ECF No. 41 (submitting Kolebuck-Utz, 2021 WL 1575219).
`11 Opp’n – ECF No. 38 at 20–21 (quoting Miller v. Collectors Univ., Inc., 159 Cal. App. 4th 988, 1006
`n.12 (2008)).
`
`ORDER – No. 20-cv-08437-LB
`
`7
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-08437-LB Document 46 Filed 06/15/21 Page 8 of 12
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`There is no other harm either. In data-breach cases, for example, anxiety and stress about a credible
`
`threat of future identity theft is injury in fact conveying Article III standing. Krottner v. Starbucks
`
`Corp., 628 F.3d 1139, 1142–43 (9th Cir. 2010).12 The cases recognizing mental anguish all involve
`
`other injury. There is only mental anguish here, and alone, it is not injury in fact.
`
`Mr. Abraham’s five hours of investigation — researching Ancestry’s use of the records, checking
`
`how easily he could find them with a web browser, and warning his friends about the use of their
`
`records — is not concrete injury either. In data-breach cases, spending substantial time monitoring
`
`one’s accounts — in the context of a credible threat of future identity theft — can be a component of
`
`injury in fact. Id. at 1141; Adkins v. Facebook, Inc., 424 F. Supp. 3d 686, 691–92 (N.D. Cal. 2019).
`
`But no case establishes that investigation untethered to harm reduction is injury in fact. Mr.
`
`Abraham’s exploration of Ancestry’s use of his records was perhaps for his peace of mind. But like
`
`his mental anguish, it is not related to other injury, and it thus does not create Article III standing. Cf.
`
`La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir.
`
`2010) (a plaintiff “cannot manufacture the injury by incurring litigation costs or simply choosing to
`
`spend money fixing a problem that otherwise would not affect the [plaintiff] at all.”).
`
`The plaintiffs also contend that misappropriating their likenesses without their permission is
`
`theft of their intellectual property. Some cases characterize the right of publicity as an intellectual-
`
`property claim. But the cases that the plaintiffs cite all involve misappropriation of celebrities’
`
`images that had commercial value.13 See, e.g., Aroa Mktg., Inc. v. Hartford Ins. Co., 198 Cal. App.
`
`4th 781, 785 (2011) (model’s image used to sell products). Again, there is no corresponding
`
`commercial value here or other separate injury, and thus, there is no injury in fact.
`
`*
`
`*
`
`*
`
`In sum, for injury in fact, there must be a concrete injury in additional to a statutory violation.
`
`Spokeo, 136 S. Ct. at 1549. The endorsement theory in Fraley is one way to prove an injury. A
`
`
`12 Accord Maddox v. Bank of N.Y. Mellon Tr., 997 F.3d 436, 448–49 (2d Cir. 2021) (material risk of
`concrete and particularized harm in the form of an unfavorable credit rating and reduced borrowing
`capacity); Calhoun v. Google LLC, No. 20-cv-5146-LHK, 2021 WL 1056532, at *21–22 (N.D. Cal.
`Mar. 17, 2021) (loss of personal information can be concrete injury).
`13 Opp’n – ECF No. 38 at 22.
`
`ORDER – No. 20-cv-08437-LB
`
`8
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-08437-LB Document 46 Filed 06/15/21 Page 9 of 12
`
`
`
`celebrity’s loss of commercial value in her name is another. Other examples include defamation or a
`
`credible risk of future harm. Here, there is no injury except for the statutory violation. The court
`
`dismisses the claims because the plaintiffs do not have Article III standing.
`
`
`
`2. The Communications Decency Act
`
`The court held previously that Ancestry was immune from liability under the Communications
`
`Decency Act, 47 U.S.C. § 230(c)(1), because it did not create content or contribute materially to
`
`the content. Instead, Ancestry — by taking information and photos from the yearbooks and
`
`republishing them on its website in an altered format — engaged in “a publisher’s traditional
`
`editorial functions [that] [] do not transform an individual into a content provider within the
`
`meaning of § 230.” Fraley, 830 F. Supp. 2d at 802 (cleaned up); cf. Fair Hous. Council v.
`
`Roommates.com, LLC, 521 F.3d 1157, 1167–68, 1173–742 (9th Cir. 2008) (website is immune
`
`under § 230(c)(1) where it “publishes [] comments as written” that “come[] entirely from
`
`subscribers and [are] passively displayed” by the website operator).14
`
`In the first complaint, the plaintiffs alleged that Ancestry “does not disclose how it created” the
`
`Yearbook database, but a section of its website “encourag[es] visitors to donate their old
`
`yearbooks” and asks the donor to sign a disclaimer about copyright restrictions.15 In the new
`
`complaint, the plaintiffs allege that they do not know how Ancestry acquired the records, reference
`
`the website’s solicitation of donations of yearbooks, and say that “it is possible [that] some of the
`
`Yearbook Database was built via such donations.”16 Based on the new allegations, the plaintiffs
`
`contend that Ancestry did not identify who provided the yearbooks. They intimate that Ancestry
`
`could have obtained the information by scraping it from websites or copying it from libraries.
`
`They conclude that Ancestry has not identified “any [third-party] information content provider”
`
`
`14 Order – ECF No. 30 at 9–11. This order does not repeat the earlier order’s analysis and instead
`incorporates it by this reference.
`15 Compl. – ECF No. 1 at 2 (¶ 3), 23–24 (¶¶ 46–50).
`16 FAC – ECF No. 32 at 28 (¶ 64).
`
`ORDER – No. 20-cv-08437-LB
`
`9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-08437-LB Document 46 Filed 06/15/21 Page 10 of 12
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`and thus cannot be immune under § 230(c)(1).17 47 U.S.C. § 230(c)(1). This argument does not
`
`change the court’s conclusion that Ancestry is not a content provider. Ancestry obviously did not
`
`create the yearbooks. Instead, it necessarily used information provided by another information-
`
`content provider and is immune under § 230(c)(1).18
`
`The plaintiffs also contend that Ancestry “has no indication that yearbook authors intended the
`
`yearbooks” to be published online.19 As the court held previously, no case supports the conclusion
`
`that § 230(a)(1) immunity applies only if the website operator obtained the third-party content
`
`from the original author. To the contrary, the Act “immunizes an interactive computer service
`
`provider that ‘passively displays content that is created entirely by third parties.’” Sikhs for Justice
`
`“SFJ”, Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088, 1094 (N.D. Cal. 2015) (quoting
`
`Roommates.com, 521 F.3d at 1162), aff’d, 697 F. App’x 526, 526–27 (9th Cir. 2017).20
`
`Citing Batzel v. Smith, the plaintiffs nonetheless contend that Ancestry has § 230(c)(1)
`
`immunity only if the yearbook creator intended the content to be published online.21 333 F.3d
`
`1018, 1034 (9th Cir. 2003). Batzel does not require the creator’s permission.
`
`In Batzel, a handyman allegedly suspected that paintings in a client’s home were looted during
`
`World War II based in part on the client’s statements to him that she was a descendent of Heinrich
`
`Himmler and inherited some of the art. After looking on the internet about reporting stolen art, he
`
`emailed the Museum Security Network about his suspicions. Id. at 1020–22. The sole operator of
`
`the network (also the director of security at Amsterdam’s Rijksmuseum) posted the email on the
`
`network and sent it by a listserv to subscribers (including museum security investors, insurance
`
`investigators, and law-enforcement investigators, who use the network to track down stolen art). Id.
`
`at 1021–22. The client discovered the message some months later and complained to the network
`
`operator. As part of his investigation, the operator contacted the handyman, who said that he would
`
`
`17 Opp’n – ECF No. 38 at 22–24.
`18 Order – ECF No. 30 at 9–10 (addressing a similar argument).
`19 Opp’n – ECF No. 38 at 24–27.
`20 Order – ECF No. 30 at 9–10.
`21 Opp’n – ECF No. 38 at 24–27 (citing Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003)).
`
`ORDER – No. 20-cv-08437-LB
`
`10
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-08437-LB Document 46 Filed 06/15/21 Page 11 of 12
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`not have sent the message if he thought it would be posted on an international message board. Id. at
`
`1022. Ultimately, the client — “to redress her claimed reputational injuries” — sued the handyman,
`
`the network operator, the museum, and a security firm that advertised on the network. Id.
`
`The network operator moved to strike the lawsuit under California’s anti-SLAPP statute,
`
`alleging that the client’s lawsuit was meritless and violated the First Amendment. Id. at 1023. The
`
`district court denied the motion, holding that the client demonstrated a probability that she would
`
`succeed on the merits of her complaint. Id. at 1026 (citing Cal. Civ. Proc. Code § 425.16,
`
`California’s anti-SLAPP statute, which requires this showing). The Ninth Circuit reversed, in part
`
`because the handyman said that he did not intend for his email to be published. Id. at 1032–35.
`
`Immunity under § 230(c)(1) applies only for “third-party information provided for use on the
`
`Internet or another interactive computer service.” Id. at 1033 (emphasis omitted). The issue was
`
`whether the handyman provided the email for publication. Id. at 1034. The court enunciated a
`
`standard for evaluating the issue: “a service provider is immune from liability under § 230(c)(1)
`
`when a third person or entity that created or developed the information in question furnished it to
`
`the provider or user under circumstances in which a reasonable person in the position of the
`
`service provider or user would conclude that the information was provided for publication on the
`
`Internet or other ‘interactive computer service.’” Id. at 1034. The record did not establish that the
`
`handyman provided the email for publication. The court thus remanded for development of the
`
`record, holding that if the operator should have reasonably concluded that the email was not
`
`provided for posting, then he was not immune under § 230(c)(1). Id. at 1035. This in turn affected
`
`whether the client demonstrated probability of success on her claim: if the operator was immune,
`
`then there presumably was no probability of success against him for defamation. See id.
`
`Batzel involved the publication of an email that (potentially) the sender never intended for
`
`publication. Ancestry of course cannot publish private information that the provider did not intend
`
`to be posted online. But here, the information was not private and, whether the yearbooks were
`
`donated by other former students or obtained from other sources, Ancestry is demonstrably not the
`
`content creator and instead is publishing third-party content provided to it for publication. Unlike
`
`Batzel, under these circumstances, a reasonable person in Ancestry’s shoes would conclude that
`
`ORDER – No. 20-cv-08437-LB
`
`11
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:20-cv-08437-LB Document 46 Filed 06/15/21 Page 12 of 12
`
`
`
`the information was provided for publication. Id. at 1034. Nothing in Batzel requires the original
`
`creator’s permission for publication.
`
`Finally, the plaintiffs contend that Ancestry created content by taking the records and putting
`
`them in popup ads and emails to promote website subscriptions.22 The court rejected that
`
`contention previously. In Fraley, for example, Facebook transformed the user’s content (liking a
`
`product) into an advertisement that — without the user’s consent — transformed the personal likes
`
`into an endorsement (resulting in a profit to Facebook from selling the ads). 830 F. Supp. 2d at
`
`791–92, 797. Ancestry did not transform the content and just offered it in a different form.23
`
`Anthony v. Yahoo! Inc. does not change this conclusion.24 421 F. Supp. 2d 1257 (N.D. Cal. 2006).
`
`Yahoo! created false user profiles for its dating app to lure subscribers to renew their
`
`subscriptions. Thus, there was no immunity for its tortious conduct. Id. at 1262–63.
`
`In sum, Ancestry has immunity under § 230(c)(1).
`
`
`
`CONCLUSION
`
`The court grants the motion to dismiss the first amended complaint. The previous dismissal
`
`was with leave to amend, and the plaintiffs did not cure the complaint’s deficiencies. The
`
`dismissal thus is with prejudice.
`
`This disposes of ECF No. 33.
`
`IT IS SO ORDERED.
`
`Dated: June 15, 2021
`
`______________________________________
`
`LAUREL BEELER
`United States Magistrate Judge
`
`
`22 Opp’n – ECF No. 38 at 27–28.
`23 Order – ECF No. 30 at 10–11.
`24 Opp’n – ECF No. 38 at 28 (citing Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1262–63 (N.D. Cal.
`2006)).
`
`ORDER – No. 20-cv-08437-LB
`
`12
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`