La risposta è positiva.
I fatti sono semplici: quando un un utente cerca sul campo di ricerca Google, installato sulla home page dei telefoni android, una certa azienda (Best carpet) , e poi clica sulla sua home page , Google sovrappone ad essa propri annunci oscurandola per tre quarti.
L’azienda ha citato Google proponendo più domande e ha ottenuto ragione .
Qui interessa solo quella c.d. trespass to chattels e cioè turbativa possessoria : qualcosa di simile alla nostra reintegrazione o (forse meglio) manutenzione possessoria ex art. 1170 cc)
Si tratta della molto interessante sentenza Best CArpets c. Google, Case No. 5:20–cv–04700, NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION del 24.09.2021.
Limpstazione è qui_: <<Here, there are two potential chattels: the computers hosting Plaintiffs’ websites and the copies of Plaintiffs’ websites appearing on users’ screens. Google contends the trespass to chattels claim fails as a matter of law as to both potential types of chattel because its Search App does not cause physical injury (i.e., intrusion, interference or harm) to any tangible property. Mot. at 6. In making this argument, Google implicitly acknowledges that the computers hosting Plaintiffs’ websites are tangible property, but contends that the Search App does not interact with those computers, much less damage them. As for the copies of Plaintiffs’ websites appearing on users’ screens, Google contends that they are not tangible property, and therefore cannot be the subject of a trespass claim. >>
Ma la corte dice che un website può essere ogetto di una trespass to chattels claim. p.8.
Gli atto dicono che un <<website ownership grants them a right to be paid for the advertising space occupied by Google on their websites. And like a domain name, a website is a form of intangible property that has a connection to an electronic document. “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. A website occupies physical space on the web server, which can host many other documents as well.” Compl. ¶ 34. Plaintiffs’ website is also connected to the DNS through its domain name, bestcarpetvalue.com, just as Kremen’s domain name was connected to the DNS. Under the Kremen court’s reasoning, Plaintiffs’ website has a connection to a tangible object, which satisfies
the Restatement’s merger requirement>>, p. 10
E non si può negare che sia stata avanzata la pur necessaria allegazione di danno: <<Here, although Plaintiffs are not alleging physical harm to their websites, they do allege functional harm or disruption. Specifically, Plaintiffs allege that “[b]y obscuring and blocking the contents of [Plaintiffs’] website homepages when viewed on Android’s Search App, Google’s ads substantially interfered with and impaired the websites’ published output and exposed the website owners to unwanted risks of lost advertising revenues and lost sales to competitors, thereby materially reducing the websites’ value and utility to the website owners. Defendant’s unauthorized interferences proximately caused Plaintiffs . . . actual damage by impairing the condition, quality and value of their websites.” Id. ¶ 186. Plaintiffs seek damages equal to the diminished market value of their websites and a permanent injunction requiring Google to disable the ad-generating feature of its Search App on every Android phone on which it is installed and preventing Google from installing any similar feature in the future. Id. ¶¶ 187-90. Google argues that there is no cognizable injury because its Search App does not affect how Plaintiffs’ websites function or how they are displayed by other programs. Mot. at 2. Google explains that its Search App does not alter Plaintiffs’ websites at all, but rather “displays additional content in a separate, user-controlled frame that overlays and coexists on phone screens with Plaintiffs’ sites.” Mot. at 7 (citing Compl. ¶¶ 73-74). But at the pleading stage, Plaintiffs’ factual allegations must be taken as true. Ashcroft, 556 U.S. at 678. Plaintiffs allege that the ads obscured and blocked their websites, which if true, would interfere with and impair their websites’ published output. Google’s ad allegedly obscured the “Cove Base” product link on Best Carpet’s home page. Compl. ¶ 73. Although Google’s ad may not have disabled or deactivated the “Cove Base” product link, it nevertheless allegedly impaired the functionality of the website: an Android phone user cannot engage a link that cannot be seen. At the pleading stage, the alleged decrease in functionality of Plaintiffs’ website is sufficient to plausibly state a cognizable injury for a trespass to chattels claim. See Compuserve Inc. v. Cyber Promotions, 962 F. Supp. 1015, 1026 (S.D. Ohio 1997) (plaintiff asserting injury aside from physical impact on computer equipment stated cognizable trespass to chattels claim based on decreased utility of plaintiff’s e-mail service and resulting customer complaints); eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058, 1070 (N.D. Cal. 2000) (granting injunction based on likelihood of success on merits of trespass to chattels claim based, in part, on showing that web crawlers diminished the quality or value of eBay’s computer system, even though eBay did not claim physical damage>>, p. 12-13