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Google Ducks Claims Over Cam Chat Theft

SAN JOSE, Calif. (CN) - A federal judge dismissed most of a tech start-up's claims that Google stole its video chat platform to use in the Google+ social network.

New York-based Be In sued Google last year, claiming the tech giant stole its multi-user live video chat platform CamUp after the two companies met in 2011 to discuss a possible collaboration.

The start-up accused Google's U.K. head of business markets, Richard Robinson, of failing to mention that Google was independently developing something like CamUp for Google+. After that meeting Be In said it saw "a dramatic spike in user traffic to the CamUp site, in particular from Mountain View, California, where Google is headquartered," and these visitors stayed on the site "longer than the typical user."

A month later, Google rolled out Google+ with a feature called "Hangouts" and embedded a "Watch With Your Friends" button in YouTube - both of which were "virtually identical" to Be In's products, according to the start-up's original complaint.

In its October 2012 opposition brief, Google said Be In had failed to properly register CamUp's copyright and that trade dress claims failed because Be In never officially unleashed the CamUp technology onto the world.

Meanwhile, shakeups of Be In's legal representation - Clifford Chance and Davis Wright Tremaine left in February, citing nonpayment, while Gibson Dunn & Crutcher lasted less than two months - left a second amended complaint unfiled.

Morrison & Forester - Google's foe in its patent fight with Oracle over Java code in the Android operating system - stepped in to represent Be In, finally filing the second amended complaint earlier this year.

Google claimed that complaint removed any factual basis for Be In's claims that Google stole its trade secrets. Furthermore, the company said Be In imperiled its claims by dropping Robinson as a defendant - the only person it ever accused of learning and illicitly transmitting trade secrets to Google - and asked U.S. District Judge Lucy Koh to dismiss the action.

On Wednesday Koh gutted the bulk of Be In's action by finding the start-up failed to adequately allege that Google misappropriated trade secrets, given its lack of specificity that Google used improper means to gain the technology - a requirement of misappropriation.

But while Koh granted Be In the chance to again fix its complaint on that point, its implied contract claim did not fare so well because of the existence of an express nondisclosure agreement between the parties.

"It is well settled that an action based on an implied-in-fact or quasi-contract cannot lie where there exists between the parties a valid express contract covering the same subject matter," Koh wrote, citing Lance Camper Manufacturing Corp. v. Republic Indemnity Co. "Instead, the express contract controls. This is consistent with California statutory law, which provides that the execution of a contract in writing supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument."

She continued: "The parties do not dispute the existence of the nondisclosure agreement or that it is an enforceable express contract. The only question the court must resolve is whether the subject matter of the alleged implied contract is the same as the subject matter of the nondisclosure agreement. If it is, then there can be no cause of action arising from the implied contract. The court finds that the contracts cover the same subject matter, and thus that Be In cannot bring a cause of action arising from the alleged implied contract."

Koh also rejected Be In's contention that Google violated CamUp's terms of service by improperly using and copying information when its employees accessed the site, thereby breaching a contract. She noted that many courts are wrestling over whether embedded links to terms of service polices - called browsewraps - constitute valid and enforceable contracts with users.

"Google's mere use of the website can only serve as a manifestation of assent where Google had, or should have had, reason to know that mere use would be so interpreted," Koh wrote. "Be In provides no grounds beyond the mere existence of a link for the court to find that Google was put on notice that mere use of the website would be interpreted as agreement to the terms of service. Be In does not allege the size or typeface of the link, the perhaps central or obvious location of the link on the page, or even the text of the link but merely alleges the existence of such a link. Because browsewrap agreements, where enforceable, are a powerful means of binding users with very little affirmative assent, a complaint must state facts establishing the means by which the link in question would give notice to a reasonably prudent internet user."

Koh gave Be In until Nov. 1 to try a third amended complaint. She also noted that the start-up had agreed to drop its copyright infringement claim against Google, and dismissed that claim as well.

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