• by Wendy Davis  @wendyndavis, October 25, 2022

Google is asking a federal appellate court to throw out a lawsuit over how the company's Android search app displayed websites.

The case, brought by Best Carpet Values, focuses on a Google-branded footer that appeared at the bottom of the screens in the Android search app, and obscured a small portion of the webpage. When users clicked on that footer, a separate overlay of banner ads for a Best Carpet competitor allegedly appeared. The footer at the center of the lawsuit was in use between 2018 and 2002 according to court documents.

Best Carpet claimed in a 2020 class-action complaint Google engaged in “trespass to chattels” -- meaning that Google allegedly infringed Best Carpet's property rights, due to the footer.

Last year, U.S. District Court Judge Edward Davila in the Northern District of California rejected Google's bid to dismiss the case at an early stage, ruling that Best Carpet could proceed with a claim that the footer interfered with its site's functionality.

Google is now asking the 9th Circuit Court of Appeals to reverse that ruling.

Google says website owners like Best Carpet lack a valid property interest in the way their pages are rendered online, arguing that they don't have “actual possession of the website copies located on users’ computers and devices,” or “the right to possession of the copies that reside on users’ devices.”

The tech company also says that Davila's ruling could pave the way for an influx of lawsuits against browser and software developers.

“If upheld, the district court’s order would give website owners a new property interest any time someone visited their website. A website owner could assert that interest to bar any application that changed the way their website appeared, even if it merely allowed a user to increase the size of text, translate it, or screen images for children,” Google writes.

The company also notes that Stanford law professor Mark Lemley and Santa Clara University law professor Eric Goldman both criticized the decision.

“The nutty Internet 'trespass to chattels' theory is back,” Lemley tweeted. “Just wait until the court finds out about the 'resize windows' button.”

Goldman characterized the decision as “obviously wrong” and “wholly counterintuitive,” in a blog post.

“Every browser software makes its own choices about how to render a page; every browser software 'frames' every web page with its software features; and every browser software lets users configure the display in ways that affect website owners’ expectations,” he wrote. 

Goldman added that Davila's reasoning could deprive users “of their own agency to decide what browsing tools best serve their needs and how best to configure those tools.”

Best Carpet is expected to file a response with the 9th Circuit by next month. The company previously argued to Davila that Google “abused its dominance of the internet search, internet advertising, and smartphone operating software markets to place advertising for itself, its clients and others on millions of businesses’ proprietary websites without those businesses’ consent and without paying for the ad space.”