Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

VHT, Inc. v. Zillow Group, Inc.

United States District Court, W.D. Washington, Seattle

January 19, 2017

VHT, INC., Plaintiff,
v.
ZILLOW GROUP, INC., et al., Defendants.

          ORDER

          JAMES L. ROBART United States District Judge

         I. INTRODUCTION

         Before the court are various issues on which the parties have asked the court to rule before trial commences. Plaintiff VHT, Inc., moves for reconsideration (MFR (Dkt. # 212) at 2-5) of part of the court's December 23, 2016, order (12/23/16 Order (Dkt. #211)). In the same motion, VHT raises three additional legal questions on which the court declined to rule in deciding VHT's and Defendants Zillow Group, Inc., and Zillow, Inc.'s (collectively, "Zillow") motions for partial summary judgment. (MFR at 5-6.) The parties also request that the court determine whether Zillow's terms of use ("TOU") is ambiguous. (TOU Stmt. (Dkt. # 228).) Separately, VHT asks the court to conclude that VHT has valid copyrights in two sets of photographs on which the Copyright Office has yet to take action. (Renewed MPS J (Dkt. #215).) At the pretrial conference, the court took under advisement Zillow's seventh motion in limine and indicated that it would issue a written order. (See Zillow MILs (Dkt. # 195) at 11-12.) Finally, in light of the court's summary judgment ruling, Zillow moves to exclude evidence of the functionality of Zillow's Home Detail Pages ("HDPs") at trial. (PTC Stmt. (Dkt. # 219) at 1.)

         Having considered the parties' briefing on these matters, counsel's oral argument at the pretrial conference, the relevant portions of the record, and the applicable law, the court rules as follows.

         II. BACKGROUND & ANALYSIS

         In its December 23, 2016, order, the court recounted the facts of this complex copyright case. (See 12/23/16 Order at 3-11.) To the extent additional facts and procedural background are relevant to each pending matter, the court expands on that background below.

         A. Zillow's Seventh Motion in Limine

         Zillow moves in limine to exclude evidence of two categories of its allegedly infringing conduct: (1) migration of content to. the Amazon Cloud; and (2) accepting images into the searchable Digs set that users failed to complete saving to their own Digs board (i.e., "implicit digs").[1] (Zillow MILs at 11-12.) Zillow contends that VHT failed to include these allegedly infringing acts in response to Zillow's Interrogatory No. 24. (Id.) Accordingly, Zillow seeks to preclude VHT from contending at trial that those actions constitute infringement. (Id.) VHT responds that it objected to Interrogatory No. 24 as vague and ambiguous. (VHT MILs Resp. (Dkt. # 206) at 10.) VHT also argues that contrary to Zillow's narrow reading, VHT's response to Interrogatory No. 24 sufficiently identify the two categories of conduct that Zillow seeks to exclude. (Id. at 11-13.)

         The court addresses each category of evidence in turn.

         1. Migration to Amazon Cloud

         The court first rejects VHT's argument that its general objection to Interrogatory No. 24 excuses its failure to identify the migration to Amazon Cloud as an infringing act. VHT objected to Interrogatory No. 24 "as vague and ambiguous to the extent it seeks information about the 'nature of the act.'" (10/25/16 Crosby Decl. (Dkt. # 133) ¶ 11, Ex. 10 ("VHT Interr. Resp.") at 5.) However vague or ambiguous "nature of the act" may be in the abstract, Interrogatory No. 24 clearly and unambiguously directs VHT to "[i]dentify each act by Zillow that [VHT] contend[s] constitutes an infringement." (Id.) The Amazon Cloud migration clearly falls under this language, and VHT's objection therefore does not excuse its failure to identify the Amazon Cloud migration as an act of infringement.

         In the alternative, VHT contends that its response "precisely" identifies the Amazon Cloud migration. (VHT MILs Resp. at 11-12.) VHT argues that it did not identify the Amazon Cloud migration by name, but that its response captured the migration by identifying the following acts:

• Zillow "continu[ed] to create archival copies of photos, including but not limited to 'p-series' copies, from the Listing Site of properties that are no longer actively listed for sale, both for storage on its [Amazon] and/or Legacy System servers and on its CNS network." (VHT Interr. Resp. at 6:21-23; see also VHT MILs Resp. at 11 (identifying this language from VHT's response to Interrogatory No. 24).)
• "[B]efore and during the display of VHT photos on the Listing Site and the Digs Site and app, Zillow uses digital tools to modify the images, including by altering the coloration of the pixels to increase contrast and decrease blurring, and by cropping the photos." (VHT Interr. Resp. at 7:7-9; see also VHT MILs Resp. at 11-12 (identifying this language from VHT's response to Interrogatory No. 24).)

         The court disagrees that either description, when read in context, sufficiently identifies migration to the Amazon Cloud as an act of infringement.

         The first excerpt on which VHT relies identifies "continuing to create archival copies." (VHT Interr. Resp. at 6:21.) "[C]ontinuing" refers to the previous action that VHT identifies: "making multiple copies of each image it has identified for display on the Digs Site ..., and storing those copies on its [Amazon] and/or Legacy System servers." (Id. at 6:18-21.) This context makes clear that this portion of VHT's response refers not to a migration of archival photographs, but to the initial generation of archival photographs. A plain reading therefore precludes the interpretation for which VHT advocates.

         For the second excerpt to cover the migration to Amazon Cloud, one must read "uses digital tools to modify [the images]" to include "cop[ying the images]." (See Id. at 7:7-9.) However, "cop[ying], " as that term is commonly understood, involves no "modif[iciation], " and the court therefore finds VHT's position to strain the plain meaning of the language. The interpretive maxim noscitur a sociis-"a word may be known by the company it keeps"-supports the court's rejection of VHT's reading. See Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 287-88 (2010). VHT listed two examples of "us[ing] digital tools to modify the images": "altering the coloration of the pixels to increase contrast and decrease blurring" and "cropping the photos." (VHT Interr. Resp. at 7:8-9.) Both examples enhance the aesthetic quality of the photographs by modifying the photograph in a manner that simply copying an archival copy of the photograph to a new database does not. Accordingly, the court concludes that VHT failed to identify the migration to Amazon Cloud as an infringing activity in its response to Interrogatory No. 24.

         If VHT's failure to disclose is harmless, the court need not exclude evidence of infringement stemming from Zillow's Amazon Cloud migration. Fed.R.Civ.P. 37(c)(1). VHT bears the burden of demonstrating harmlessness to Zillow. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1007 (9th Cir. 2001). VHT argues that even if it insufficiently identified the photographs, "Zillow has been fully aware for months of each of the infringing acts [Zillow] seeks to preclude VHT from referencing, include [sic] from specific allegations in VHT's complaints and the deposition testimony of its own witnesses." (VHT MILs Resp. at 13.) However, none of the five portions of the record to which Zillow cites support this assertion. Pages 27 and 28 of Jason Gurney's Rule 30(b)(6) deposition are the only cited pages that refer to the Amazon Cloud migration. (See 12/19/16 Hensley Decl. (Dkt. # 207) ¶ 8, Ex. F at 27:13-28:7.) In his deposition, Mr. Gurney acknowledges the Amazon Cloud migration, but neither the questioning nor the responses evince notice to Zillow that VHT considered the migration an act of infringement. (Id.) Indeed, the lack of notice harmed Zillow by, for instance, precluding Zillow from moving for summary judgment on VHT's infringement allegations rooted in the Amazon Cloud migration. (See Zillow MIL at 11-12.) Accordingly, the court concludes that VHT may not pursue infringement claims based on evidence of the migration to Amazon Cloud.[2]

         2. I ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.