The patent language cited by the plaintiff described the technological mechanisms by which the interactions are recorded and retrieved but did not include any information about how those recordings are used.
On the heels of holding that defendants’ use of session replay software did not constitute a violation of the California Invasion of Privacy Act, Judge William Alsup in Williams v. What If Holdings LLC and ActiveProspect Inc. has now denied the plaintiff’s request for leave to amend. In doing so, the court reaffirmed its previous holding that the plaintiff’s allegations only established that ActiveProspect’s use of session replay software functioned as a tool that supported What If’s management of its own website data, and not as a means of eavesdropping and aggregating information for ActiveProspect’s own purposes.
The plaintiff sought to cure the defects in her pleading with additional factual context concerning the services that ActiveProspect offers, including: (1) statements ActiveProspect’s CEO made on a podcast; (2) language from ActiveProspect’s patent on its session replay software; and (3) an article describing the potential privacy threats that website recording software could pose. But the court concluded that these proposed amendments failed to explain how the information they provide connects to the plaintiff’s interaction with the website. The court also reasoned that the new allegations further supported the conclusion that ActiveProspect served merely as a recording device that facilitated What If’s management of its own website. For example, the patent language cited by the plaintiff described the technological mechanisms by which the interactions are recorded and retrieved but did not include any information about how those recordings are used. Additionally, the article that warns against the privacy threats posed by website recording software provided no additional facts describing the conduct amounting to an alleged violation. Judge Alsup therefore denied the motion for leave to amend and entered judgment in favor of What If and ActiveProspect.
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