United States District Court, W.D. Washington, Seattle
L. ROBART United States District Judge
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
(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.)
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.
BACKGROUND & ANALYSIS
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.
Zillow's Seventh Motion in Limine
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"). (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.)
court addresses each category of evidence in turn.
Migration to Amazon Cloud
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.
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
• 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).)
court disagrees that either description, when read in
context, sufficiently identifies migration to the Amazon
Cloud as an act of infringement.
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.
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.
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