Tag: conversion

March 4, 2024 Computer Crime

Stealing data: Ninth Circuit examines whether cellular data can be subject to a conversion claim

data conversion

Plaintiffs sued Google alleging Google improperly used plaintiffs’ cellular data without consent, constituting conversion under California law. The lower court dismissed the case for failure to state a claim. Plaintiffs sought review with the Ninth Circuit. On appeal, the court reversed the lower court’s decision concerning the conversion claim, finding that cellular data is something that can be subject to conversion.

The court observed that a successful conversion plaintiff must plead and prove (1) ownership or rightful possession of property, (2) defendant’s use of the property in violation of plaintiff’s rights, and (3) resulting damages. The court found that plaintiffs satisfactorily established cellular data as a form of personal property subject to conversion, given its definable nature, potential for exclusive control, and plaintiffs’ legitimate expectations based on their data plans.

Moreover, the court concluded that plaintiffs’ allegations against Google meet the criteria for conversion, demonstrating unauthorized use of their cellular data that went against their property interests and resulted in quantifiable damages. By equating Google’s actions to a “forced sale” of plaintiffs’ data, the court underscored the tangible impact of intangible property loss.

Taylor v. Google, 2024 WL 837044 (9th Cir. February 28, 2024)

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August 9, 2010 Copyright

State law claims against Turnitin fail

Christen v. Iparadigms, LLC, No. 10-620, 2010 WL 3063137 (E.D.Va. Aug. 4, 2010)

Plaintiff was a graduate student and one of her professors uploaded a couple of plaintiff’s papers to the web-based plagiarism detection service Turnitin. You may remember how the Fourth Circuit held last year that this uploading and use of students’ papers is a protected fair use that would not subject Turnitin to liability for copyright infringement.

Perhaps recognizing the difficulties of a copyright case against Turnitin, plaintiff pursued various state-law, non-copyright claims based on Turnitin’s inclusion of plaintiff’s works in its database. So plaintiff sued for conversion, replevin and unjust enrichment.

The court dismissed all three of these claims, holding that they were preempted by the Copyright Act.

The Copyright Act specifically preempts all state-law rights that are equivalent to those protected under federal copyright law. Many courts apply a two-pronged test to determine if a particular state-law claim is preempted: (1) the work must be within the scope of the subject-matter of copyright, and (2) the rights granted under state law must be equivalent to any exclusive rights within the scope of federal copyright.

The court found that there was “no question” that the works at issue — plaintiff’s unpublished manuscripts — fell within the subject-matter of copyright protection.

It went on to find that plaintiff’s conversion claim was “simply a copyright infringement claim dressed in state-law clothing.” And the rights in the works that the plaintiff asserted — mainly, to use and reproduce the copyrighted work — were exclusive rights granted by the Copyright Act. The conversion claim also failed because plaintiff was not seeking the return or destruction of tangible property, just code stored on the Turnitin server.

The court dismissed the replevin claim on similar grounds. Because there was nothing tangible to be purged or returned, an action in replevin would not be viable. But even more importantly, replevin actions are no longer recognized under Virginia law, as the cause of action was repealed by statute.

Finally, the court held that plaintiff’s unjust enrichment claim failed. Citing to Nimmer and a batch of cases holding unjust enrichment cases to be preempted by the Copyright Act, the court held that a state-law cause of action for unjust enrichment should be regarded as an “equivalent right” to rights granted under the Copyright Act.

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