Callahan v. Ancestry.com Inc.

Background

Meredith Callahan and Lawrence Abraham, California residents who were not Ancestry subscribers, alleged that Ancestry included their names, photographs, and other information from old yearbooks in its U.S. School Yearbooks, 1900–1999 database. Ancestry offered access to the database through paid subscription plans and used pop-up advertisements and emails containing yearbook records to solicit subscribers. The plaintiffs alleged that they did not consent to this use and were not paid.

The plaintiffs asserted four claims, individually and for a proposed California class: violation of California’s right-of-publicity statute, unlawful and unfair business practices under California’s Unfair Competition Law, intrusion upon seclusion under California common law, and unjust enrichment.

Motion to Dismiss

Ancestry moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal for lack of subject-matter jurisdiction, arguing that the plaintiffs lacked constitutional standing. Standing requires a plaintiff to show a concrete and particularized injury, a connection between that injury and the defendant’s conduct, and a likelihood that a court decision can remedy the injury.

The court held that the plaintiffs had not plausibly alleged an injury in fact. The yearbook information was public information distributed to classmates, and Ancestry’s use of the profiles to solicit paying subscribers, by itself, did not establish an injury. The court said additional facts might have been sufficient, such as an inference that the plaintiffs personally endorsed Ancestry’s products or had a comparable commercial interest in their likenesses. The court also rejected the theory that the plaintiffs’ loss of control over their likenesses alone established standing, because California’s right-of-publicity statute requires injury.

The court dismissed the complaint for lack of standing and allowed the plaintiffs to amend to try to cure that jurisdictional defect.

The court also ruled, alternatively, that the Communications Decency Act, 47 U.S.C. § 230(c)(1), immunized Ancestry from liability. The statute generally protects an interactive computer service from liability for content supplied by another information provider, but does not protect a service that materially creates or develops the information. The court found that Ancestry obtained the underlying yearbook records from third parties and did not create the content. Extracting the information, displaying it on Ancestry’s webpages, including it in emails, adding estimated information, and adding subscription-related buttons changed the presentation or functionality but did not materially alter the content.

Motion to Strike

Ancestry also moved to strike the plaintiffs’ request for statutory damages, their claim for restitution under the Unfair Competition Law, and all claims under California’s anti-SLAPP statute. That statute provides an early procedure for challenging claims based on protected speech or petitioning activity connected to a public issue.

The court denied the anti-SLAPP motion because Ancestry’s inclusion of the decades-old yearbook information was not a public issue. The court otherwise denied the motion to strike as moot.

Disposition

The court granted the motion to dismiss and denied the motion to strike. The plaintiffs were required to file any amended complaint within 21 days and attach a blackline showing the changes. The order disposed of ECF No. 13.