Jurist questions injury claims from Ancestry site’s use of yearbook photos

A federal magistrate judge pushed back Thursday on claims that people suing genealogy website Ancestry.com for selling access to their personal data, records and photographs without permission suffered sufficient injury to sue.

U.S. Magistrate Judge Laurel Beeler challenged a central argument in the class action that the consumer DNA company illegally profits from its business model of amassing databases of personal information and selling it for subscription fees.

"It seems to me for standing and injury, you have to have something more than monetization," she said.

The lawsuit targets Ancestry's "U.S. School Yearbooks" database of 60 million minors who attended California schools from 1900 to 1999 in a case testing the right of people to control the distribution of their names and photographs. Callahan v. Ancestry.com, 20-cv-08437 (N.D. Cal., filed Nov. 30, 2020).

Indicating she's inclined to dismiss at least some of the claims, Beeler suggested a private company profiting from public records is not an actual injury.

"I have a hard time seeing standing," she said.

Benjamin Osborn, a New York-based attorney representing the plaintiffs, countered that people suffered harm from the denial of their authority to oversee the use of their likenesses. He relied on two cases decided by judges in the Northern District of California, Fraley v. Facebook and Davis v. Facebook.

In those lawsuits, claimants were found to have standing to sue based on federal and state laws recognizing a right to privacy without having to prove that they would have profited if not for the misconduct.

That right, Beeler responded, is "grounded in who you are" because most individuals in this class action will likely never profit from their likenesses.

"It's like a patent," Osborn replied. You don't need to prove that you would profit. It's enough that you took it."

Arguing that Osborn misinterpreted the ruling in Fraley, Ancestry attorney Shon Morgan said the judge overseeing the case found that illegally obtained earnings could become a measure of damages once standing through injury is established.

"Profits aren't a substitute for an injury requirement," the Quinn Emanuel Urquhart & Sullivan LLP partner said.

Beeler also raised the likelihood that the company is immune under the Communications Decency Act, a federal law shielding companies from claims arising from the publication of content by third parties.

It remains undisclosed how Ancestry amassed a collection of names and photographs in its database. Users are encouraged to upload yearbooks.

But Osborn pointed out that people never intended for their photographs to be posted on the internet when they were taken as minors.

Beeler asked if public libraries would be sued if they digitized yearbooks and published them online.

"That changes the case, because it's a public library," Osborn answered. "Ancestry is a for-profit company. They're not serving the same record-keeping function."

Ancestry disagreed, emphasizing that its content serves significant educational and historical interests and that the records are already publicly available.

The lawsuit claims a violation of California's Right of Publicity Statute for misappropriation of likeness in advertising or soliciting without prior consent, which provides damages of up to $750 per violation, and unjust enrichment, among other claims.

Beeler did not say when she would issue a ruling on the motion to dismiss.