VHT, Inc. v. Zillow Group, Inc., No. 17-35587 (9th Cir. 2019)Annotate this Case
VHT filed a copyright infringement suit against Zillow, alleging that Zillow's use of photos on its Listing Platform and Digs exceeded the scope of VHT's licenses to brokers, agents, and listing services who provided those photos to Zillow. The Ninth Circuit held that VHT failed to satisfy its burden of demonstrating that Zillow directly infringed the photos displayed on the Listing Platform, because VHT failed to provide evidence showing that Zillow exercised control; selected any material for upload, download, transmission, or storage; or instigated any copying, storage or distribution of the photos. The panel also held that VHT did not present substantial evidence that Zillow, through the Digs platform, directly infringed its display, reproduction, or adaption rights in 22,109 not displayed photos and 2,093 displayed but non-searchable photos. However, the fair use defense did not absolve Zillow of direct liability for 3,921 displayed, searchable Digs photos.
The panel affirmed the district court's grant of Zillow's motion for judgment notwithstanding the verdict with respect to secondary infringement, both contributory and vicarious infringement. In regard to damages, the panel remanded to the district court for further proceedings as to whether the VHT photos remaining at issue were a compilation, and held that substantial evidence did not show Zillow was actually aware of its infringing activity nor was it reckless or willfully blind to its infringement. Accordingly, the panel affirmed in part, reversed in part, and remanded.
Court Description: Copyright Law The panel affirmed in part and reversed in part the district court’s judgment after a jury trial and remanded in a copyright infringement action brought by VHT, Inc., a real estate photography studio, against Zillow Group, Inc., and Zillow, Inc., an online real estate marketplace. VHT alleged that Zillow’s use of photos on the “Listing Platform” and “Digs” parts of its website exceeded the scope of VHT’s licenses to brokers, agents, and listing services that provided those photos to Zillow. The district court granted partial summary judgment on a limited set of claims. The jury found in favor of VHT on most remaining claims, awarding over $8.27 million in damages. The district court partially granted Zillow’s post-trial motion for judgment notwithstanding the verdict, reversing in part the jury verdict and reducing total damages to approximately $4 million. The panel affirmed the district court’s summary judgment in favor of Zillow on direct infringement of the Listing Platform photos. The panel held that VHT failed to establish that Zillow engaged in volitional conduct by exercising control over the content of the Listing Platform. With respect to direct liability on the Digs photos, the panel affirmed the district court’s grant in favor of Zillow of judgment notwithstanding the verdict on 22,109 non- displayed photos and 2,093 displayed but not searchable