Following the Northern District of California granting Ancestry’s motion to dismiss a putative class action yearbook photo lawsuit in March, the plaintiffs quickly filed an amended complaint that Ancestry moved to dismiss on April 4. On Monday, Ancestry.com filed a reply in support of its motion to dismiss the first amended complaint.
Previously, the court found that the plaintiffs did not plausibly allege standing because they did not establish injury and the court concluded that Ancestry is immune from liability under Section 230 of the Communications Decency Act.
In its reply, Ancestry proffered that the plaintiffs’ opposition to its motion to dismiss “largely rehashes arguments this court has already considered and rejected,” adding that the “few ‘new’ arguments plaintiffs raise do not alter this Court’s determinations that plaintiffs have not alleged an ‘injury in fact’ for purposes of Article III standing, nor that their claims are barred by Section 230 of the Communications Decency Act.”
Ancestry claimed that the court does not need to have further proceedings because the plaintiffs’ opposition “provides no reasoned basis that any alleged use of the yearbook images is not preempted by the Copyright Act.” Ancestry contended that the plaintiffs seek to avoid dismissal “through inconsequential variants on their legal arguments.”
In particular, Ancestry purported that the plaintiffs still cannot allege a cognizable injury for Article III standing. Ancestry pointed to the plaintiffs’ argument that they have addressed the court’s concerns in its order by alleging a violation of California’s right to publicity, which according to the plaintiffs, “is itself an injury.” However, Ancestry argued that the plaintiffs must, as noted by the court, “articulate a concrete injury beyond mere violation of the statute.”
Ancestry also noted that the plaintiffs repeat their assertion that “their names had ‘provable commercial value’ because Ancestry was (purportedly) able to profit from their use.” However, Ancestry claimed that the court already determined that “the crux of the Article III inquiry is whether the plaintiff was harmed, not whether a defendant profited.” Therefore, Ancestry contended that the plaintiffs’ claims that Ancestry profited from this information is “irrelevant” unless they allege some harm to themselves.
Ancestry proffered that while the plaintiffs did assert a new theory of mental anguish, the cited case “demonstrates why that theory is implausible” because the plaintiffs did not allege a commercial loss or defamation. Additionally, Ancestry cited that only one of the plaintiffs alleged that time spent on Ancestry “in pursuit of these claims constitutes as ‘injury,’” which Ancestry asserted is insufficient for standing.
Lastly, the plaintiffs claimed intellectual property theft, which Ancestry alleged fails on its merits. As a result, Ancestry claimed that the plaintiffs’ allegations failed to demonstrate injury, so the claims should be dismissed.
Ancestry also averred that the plaintiffs do not offer any reasons to revisit the court’s determination that Ancestry is immune under Section 230. Specifically, Ancestry alleged that some of the plaintiffs’ claims – including that some of the yearbooks were donated and that they were not intended to be published online – were previously rejected by the court.
According to Ancestry, the plaintiffs’ claims are preempted by the Copyright Act and there is no plausible claim for intrusion upon seclusion. Additionally, Ancestry contended that the plaintiffs are not entitled to statutory damages.
Ancestry seeks for the court to grant its motion to dismiss and for the court to dismiss the plaintiffs’ claims with prejudice.
The plaintiffs are represented by Morgan & Morgan Complex Litigation Group as well as Benjamin R. Osborn. Ancestry.com is represented by Quinn Emanuel Urquhart & Sullivan, LLP.
