Pennsylvania District Court Dismisses Boring v. Google, Inc.
By Aaron Dulles – Edited by Jay Gill
Boring v. Google, Inc.
Western District of Pennsylvania, February 17, 2009, No. 08-694
District Court Memorandum Opinion
A magistrate judge in the Western District of Pennsylvania dismissed all claims by Aaron and Christine Boring against Google for photographs taken of the Borings’ house and pool for use in the Street View feature of Google Maps. The Borings had filed suit in April 2008 after discovering pictures of their house on Google’s Street View. They noticed that the pictures were taken from their unpaved driveway, which had allegedly been marked with signs reading “Private Road” and “No Trespassing.”
Law.com cites EFF lawyer Kevin Bankston as stating that Google might, in some cases, be held liable for the actions of their Street View photographers. Calling the lawsuit silly, blogger Eric Goldman was nonetheless concerned that the magistrate judge appeared to punish the Borings for bringing increased attention to themselves by filing suit publicly. InformationWeek discussed the judge’s reasoning, reporting that the Borings had not used Google’s own opt-out procedure before filing suit. PlexLex notes that a side effect of the lawsuit is that news agencies’ use of the photos of the Borings’ property has been rendered more permissible as fair use of copyrighted material.
The Pittsburgh Metblogs raises the question of why Google is under fire in light of the amount of publicly available information on the Allegheny County website, and CNET News notes that Google has been under criticized for their Street View photography before.
Considering the Borings’ several claims, the court focused primarily on the claim for invasion of privacy. Judge Hay considered and rejected two distinct torts upon which invasion of privacy may be established: intrusion upon seclusion, and publicity given to private life. In each case, the court based its rejection on a finding that the Borings had failed to allege actions sufficient to shame, humiliate, or offend a reasonable person. The court noted that the Borings had “drawn [attention] to themselves and the Street View images of their property” by failing to request that Google remove the images from view using the available opt-out procedure. The court also suggested that the plaintiffs had not attempted to “mitigate their alleged pain” by eliminating their address from the pleadings, or filing this action under seal.
Perhaps with some irony, the court itself relied on the Google search engine in gathering facts for the case, stating that “‘Googling’ the name of the Borings’ attorney demonstrates that publicity regarding this suit has perpetuated dissemination of the Borings’ names and location, and resulted in frequent re-publication of the Street View images.”
With regards to the Borings’ trespass claim, the opinion reasoned, somewhat confusingly, that the plaintiffs had 1) failed to alleged facts sufficient to sustain any damages and 2) Google’s trespass was not the proximate cause of the mental suffering and diminution in property value the plaintiffs alleged they had experienced.
The court also dismissed the Borings’ claims of negligence and unjust enrichment.