FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BEST CARPET VALUES, INC.; 

THOMAS D. RUTLEDGE, on behalf 

of themselves and all others similarly 

situated, 

Plaintiffs-Appellees, 

 v. 

GOOGLE, LLC, 

Defendant-Appellant.

No.22-15899 

D.C. No.

5:20-cv-04700-

EJD 

OPINION

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 halfpage 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’ statelaw 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’ impliedin-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 BEST CARPET VALUES, INC. V. GOOGLE LLC

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 

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 
BEST CARPET VALUES, INC. V. GOOGLE LLC 5

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, 

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.
6 BEST CARPET VALUES, INC. V. GOOGLE LLC

Plaintiffs filed a putative class action, asserting 

California state law claims for trespass to chattels, impliedin-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 

the first and third questions are indeed dispositive, thus we 

do not address the second or fourth.2

1 The district court dismissed the UCL claim under the “unfair” part but 

left intact the claim under the “unlawful” part.

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 
BEST CARPET VALUES, INC. V. GOOGLE LLC 7

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 

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 

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.
8 BEST CARPET VALUES, INC. V. GOOGLE LLC

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.

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 

4 Contrary to Plaintiffs’ assertion, Google did not waive its argument 

against Plaintiffs’ property interest in the website copies. The district 
BEST CARPET VALUES, INC. V. GOOGLE LLC 9

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; 

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 

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. 
10 BEST CARPET VALUES, INC. V. GOOGLE LLC

[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.

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 

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.
BEST CARPET VALUES, INC. V. GOOGLE LLC 11

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 

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 
12 BEST CARPET VALUES, INC. V. GOOGLE LLC

(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.

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 

6 We therefore have no reason to revisit Kremen’s discussion of the 

“merger rule” under California law. See 337 F.3d at 1033.
BEST CARPET VALUES, INC. V. GOOGLE LLC 13

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 

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.” 
14 BEST CARPET VALUES, INC. V. GOOGLE LLC

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 

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 
BEST CARPET VALUES, INC. V. GOOGLE LLC 15

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 

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, 
16 BEST CARPET VALUES, INC. V. GOOGLE LLC

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 

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, 
BEST CARPET VALUES, INC. V. GOOGLE LLC 17

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. 

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 

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), aff’d sub nom. Columbia Broad. Sys. Inc. v. Loew’s Inc., 356 U.S. 

43 (1958) (examining an earlier but substantially similar version of the 

Copyright Act and holding that infringement applied to both the “other 
18 BEST CARPET VALUES, INC. V. GOOGLE LLC

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.”). 

Either way, these allegations implicate the exclusive rights 

to copyright holders bestowed by federal statute.

Having determined that Plaintiffs’ implied-in-law 

contract and unjust enrichment claim falls within the subject 

matter of and asserts rights equivalent to those provided by 

federal copyright law, the only remaining task is to inquire 

whether Plaintiffs’ state-law claim carries “an extra 

element” as compared to a federal copyright claim. It does 

not.

“The elements of a cause of action for unjust enrichment 

are simply stated as receipt of a benefit and unjust retention 

version” and “copy” of the copyrightable material). Plaintiffs’ state-law 

claim is preempted regardless of how we characterize the right. 
BEST CARPET VALUES, INC. V. GOOGLE LLC 19

of the benefit at the expense of another.” Tufeld Corp. v. 

Beverly Hills Gateway, L.P., 86 Cal. App. 5th 12, 31–32 

(2022) (internal quotation marks and citation omitted). As a 

leading treatise has opined, “a state-law cause of action for 

unjust enrichment or quasi contract should [generally] be 

regarded as an ‘equivalent right’ and, hence, preempted 

insofar as it applies to copyright subject matter.” 1 Melville 

B. Nimmer & David Nimmer, Nimmer on Copyright 

§ 1.15[G] (2023).

The district court concluded that Plaintiffs’ claim was 

not preempted because it contained “extra elements” but did 

not articulate what those extra elements were. Instead, the 

district court opined that Plaintiffs’ claim was “qualitatively 

different from a copyright claim” apparently because 

“Google allegedly covered up or obscured a portion of 

Plaintiffs’ websites from Android phone users for [Google’s 

own] financial benefit.” But such alleged action by Google 

is strikingly similar to “distort[ing], overla[ying] and 

otherwise edit[ing] original images, while also combining 

them with . . . additional graphics, . . . and marketing 

slogans,” which we have found to qualify as derivative work. 

Jarvis, 486 F.3d at 531. Furthermore, the alleged financial 

benefit to Google maps neatly onto the damage requirement 

for any successful copyright claim. See 17 U.S.C. 

§ 504(a)(1) (holding that a copyright infringer may be liable 

for “the copyright owner’s actual damages and any 

additional profits of the infringer”). Therefore, the alleged 

benefit to Google from Search App’s display of Plaintiffs’ 

website, such as there was one, is not an “extra element” 

beyond the elements of federal copyright law. Because the 

implied-in-law contract and unjust enrichment claim “is not 

materially different from a claim for copyright infringement 

that requires a plaintiff to prove that the defendant used, 
20 BEST CARPET VALUES, INC. V. GOOGLE LLC

reproduced, copied, or displayed a copyrighted work,” it is 

preempted. Forest Park Pictures v. Univ. Tel. Network, Inc., 

683 F.3d 424, 432 (2d Cir. 2012); accord Del Madera, 820 

F.2d at 977. 

The main case upon which Plaintiffs rely to rebut the 

notion that their unjust enrichment claim lacks any extra 

element of a copyright claim, Grosso v. Miramax Film 

Corp., 383 F.3d 965 (9th Cir. 2004), is readily 

distinguishable. That case involved an implied-in-fact

contract containing an added element of an explicit 

“agreement to pay for use of the disclosed ideas.” Montz, 

649 F.3d at 980, citing Grosso, 383 F.3d at 967–68. In 

contrast, here Plaintiffs advance a theory based on a contract 

implied-in-law without any additional agreement, either 

explicit or implicit.

Finally, even construing Plaintiffs’ implied-in-law 

contract and unjust enrichment claim as an allegation that 

Google exceeded the scope of its license does not save the 

claim from preemption. See MDY Indus., 629 F.3d at 940 

(“[W]e have held that the potential for infringement exists [] 

where the licensee’s action (1) exceeds the license’s scope 

(2) in a manner that implicates one of the licensor’s 

exclusive statutory rights.”). Plaintiffs alleged that Google 

has a license to reproduce copies of their websites that users 

may access on their mobile screens through Google’s 

browser, and that Google exceeded this license by 

“superimposing non-consensual ads onto” their websites. 

The district court agreed, indicating that another reason that 

Plaintiffs’ claim was not preempted was that “Plaintiffs want 

and expect Google to copy and display their websites in 

Chrome browser and Search App, and acknowledge that 

Google has license to do so.” But Plaintiffs do not specify 

the scope of Google’s license—by indicating if or how 
BEST CARPET VALUES, INC. V. GOOGLE LLC 21

Google’s license to display copies of their websites was 

conditioned in any way. Therefore, it is not clear what 

“cognizable legal right of [Plaintiffs] has been violated.” 

Marina Tenants Ass’n v. Deauville Marina Dev. Co., 181 

Cal. App. 3d 122, 134 (1986); see also S.O.S., Inc. v. 

Payday, Inc., 886 F.2d 1081, 1087–88 (9th Cir. 1989) 

(holding that “[t]he critical question is not the existence but 

the scope of the license”). 

We hold that Plaintiffs’ state-law claim is preempted 

under federal copyright law. The district court erred in 

permitting Plaintiffs’ case to proceed on this theory.

IV.

For these reasons, we conclude that the district court 

erred in denying Google’s motion to dismiss and allowing 

Plaintiffs to advance their California state-law claims of 

trespass to chattels and unjust enrichment. Their remaining 

claim, based on UCL’s prohibition of an “unlawful 

. . . business act or practice,” requires a predicate state or 

federal law claim. Lippitt v. Raymond James Fin. Servs., 

Inc., 340 F.3d 1033, 1043 (9th Cir. 2003), citing Cal. Bus. & 

Prof. Code § 17200 and Cel-Tech Commc’ns, Inc. v. L.A. 

Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999). No predicate 

claims remain and Plaintiffs cannot proceed on their UCL 

claim alone. Accordingly, we reverse the district court’s 

order denying Google’s motion to dismiss and remand the 

case with instructions to dismiss. 

REVERSED AND REMANDED.