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VHT, Inc. v. Zillow Group, Inc.

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

June 20, 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 two post-trial motions: Defendants Zillow Group, Inc., and Zillow, Inc.'s (collectively, “Zillow”) motion for judgment notwithstanding the verdict or for a new trial (JNOV Mot. (Dkt. # 301)); and Plaintiff VHT, Inc.'s motion to amend the judgment to add a permanent injunction (Inj. Mot. (Dkt. # 300)). VHT opposes Zillow's motion (JNOV Resp. (Dkt. # 304)), and Zillow opposes VHT's motion (Inj. Resp. (Dkt. # 302)). The court has reviewed the parties' submissions in support of and opposition to the motions, the relevant portions of the record, and the applicable law. Considering itself fully advised, [1] the court GRANTS in part and DENIES in part Zillow's motion, DENIES VHT's motion, and DIRECTS the parties to meet and confer, file a statement, and attend a status conference as detailed below.

         II. BACKGROUND

         A. Procedural History

         This action arose from Zillow's use of VHT's copyrighted real estate photographs. (See Pretrial Order (Dkt. # 244) at 2:4-3:11; Ex. 600 (Dkt. # 272) ¶ 2.) VHT alleged that Zillow, which owns and hosts a real estate website and a related computer application (“app”), infringed upon 28, 125 of VHT's photographs (“the VHT Photos”).[2] (See Pretrial Order at 2:4-3:11; Ex. 600 ¶¶ 6, 9-10; Summ. Image SS (Dkt. # 256-1); Final JIs (Dkt. # 275) at 20:2-13.) Zillow used 28, 124-all but one-of the VHT Photos in conjunction with “Digs, ” a content area on Zillow's website geared toward home design and renovation. (See Summ. Image SS; Ex. 600 ¶ 11; Ex. 512 at Column N.)[3] Zillow also used one of those 28, 124 VHT Photos in an email. (1/27/17 Trial Tr. at 98:21-100:1, 112:22-25; Ex. 293; Ex. 512 at Row 17, 744, Column AV.) Zillow used the final VHT Photo exclusively in a blog post. (1/27/17 Trial Tr. at 100:2-22, 112:6-21; Ex. 243; Ex. 512 at Row 28, 127, Column AV.) Because of the voluminous set of VHT Photos at issue, the parties tried the case by stipulating to the accuracy of an electronic spreadsheet that provided pertinent details regarding all 28, 125 VHT Photos. (See Ex. 600 ¶ 12; Ex. 512; see also Ex. 600 ¶ 13; Ex. 513 (displaying each VHT Photo from VHT's copyright registrations and the mirror image from Digs).)

         VHT sued Zillow under several theories of copyright infringement. (See Pretrial Order at 2:7-15; Final JIs at 20:4-6; Verdict Form (Dkt. # 281) at 1:17-3:17.) Most straightforwardly, VHT sought to hold Zillow liable for direct copyright infringement. (Pretrial Order at 2:7-10; Final JIs at 21:2-11; Verdict Form at 1:17-2:4.) In addition, VHT sought to hold Zillow liable for direct infringements by Zillow's users under two theories of indirect copyright infringement. (See Pretrial Order at 2:11-15; Final JIs at 20:7-11, 22:2-25:6; Verdict Form at 2:5-3:7.) First, VHT contended that Zillow contributorily infringed by either materially contributing to or inducing infringement by Zillow's users. (See Pretrial Order at 2:11-13; Final JIs at 22:2-23:8; Verdict Form at 2:5-16.) Second, VHT alleged that Zillow vicariously infringed based on the direct infringement of Zillow's users. (See Pretrial Order at 2:13-15; Final JIs at 24:2-25:6; Verdict Form at 2:17-3:7.) The court held a jury trial on VHT's claims from January 23, 2017, to February 9, 2017.[4]

         B. Evidence Presented at Trial

         Zillow receives millions of photos each day through feeds provided by real estate brokers, multiple listing services (“MLS”), [5] and other sources. (2/2/17 Trial Tr. at 120:13-16; 2/7/17 Trial Tr. at 69:16-18, 132:25-136:6.) Each feed provider operates under an agreement with Zillow. (2/7/17 Trial Tr. at 139:2-141:7.) Those feed agreements include assurances from the feed provider to Zillow regarding the scope of the providers' permissible use of the photos, and many of the agreements purport to confer a broad license to Zillow. (Id.; see Ex. A-77 at 1.) Zillow characterizes photos from feed agreements of unlimited temporal scope as “evergreen, ” whereas it classifies as “deciduous” photos from feed agreements that require Zillow to cease displaying the photos after the corresponding listing is removed. (2/2/17 Trial Tr. at 70:11-16.)

         Before launching Digs publicly, Zillow contracted with a company called Samasource to select a launch set of images. (1/27/17 Trial Tr. at 195:24-196:1.) Samasource provided moderators, who selected approximately 20, 000 evergreen images from Zillow's database, including 870 VHT Photos, to use as a launch set for Digs. (Id. at 195:6-196:13; 2/2/17 Trial Tr. at 71:17-72:4; 2/7/17 Trial Tr. at 69:13-70:9, 94:19-95:6; Ex. 512 at Column AD.) The moderators also tagged certain elements of the room displayed in those images. (2/7/17 Trial Tr. at 80:25-81:3.) Tagging the images rendered them searchable by visitors to Digs. (Id. at 70:24-71:6.)

         When Digs launched, only the launch set of images was available, but over time, Zillow created several different ways for users to add images to Digs. (Id. at 71:7-10.) Users can upload their own images to Digs, and by January 2014, Zillow allowed users to “dig” images from home details pages (“HDPs”) on Zillow's main website. (Id. at 71:11-25; 1/27/17 Trial Tr. at 211:7-213:18.) When a user digs an evergreen image, the image is accessible to any Digs user, but each deciduous image is visible only to the user that dug the image. (2/7/17 Trial Tr. at 73:16-74:1.) In addition, Zillow created a functionality called “implicit digs, ” in which Zillow saved to Digs images that its users selected to save but failed to finish saving. (2/2/17 Trial Tr. at 115:1-118:13.)

         Zillow also tagged-and thereby made searchable-some of the evergreen images that Digs users selected. (1/27/17 Trial Tr. at 209:1-14; 2/7/17 Trial Tr. at 78:12-18, 80:9-13.) Zillow determined which images to make searchable through a moderation process. (1/27/17 Trial Tr. at 214:11-215:1.) Initially, and for the majority of the relevant time period, the moderation process included an initial automated review for blurriness or tilt and a second human review for images that passed the first, automated stage.[6] (2/7/17 Trial Tr. at 78:19-79:25.) The human review sought images that were “interesting or notable” and subjectively rated the quality of each image. (Id. at 80:16-81:21.) Zillow tagged and thereby made searchable the images that the moderators selected; the other images remained non-searchable. (Id. at 80:16-24, 81:4-7.) In addition, when the moderator gave an image a “great” quality rating, a Zillow design moderator reviewed the image and overlaid product bubbles on the “interesting products” in the image. (Id. at 81:11-82:15.) The product bubbles linked to a website where the user could purchase the product that best matched the relevant feature. (Id. at 81:22-82:4.) Neither the moderation process nor the bubbling process created any additional copies of the image. (Id. at 81:8-10, 82:8-15.)

         Beginning in 2013, VHT informed Zillow multiple times-and with varying degrees of specificity, accuracy, and completeness-that Digs featured images for which VHT held the copyright.[7] (1/27/17 Trial Tr. at 26:12-35:3; Ex. 51; Ex. 506; 2/2/17 Trial Tr. at 27:4-28:23; Ex. 45 at 2; 2/3/17 Trial Tr. at 61:21-64:13; Ex. A-83 at 1.) The discussions culminated in July 2014, when VHT sent Zillow a formal takedown notice and a list of purportedly infringing images. (1/27/17 Trial Tr. at 139:24-140:24; 2/3/17 Trial Tr. at 69:11-73:6; Ex. 98; see also Ex. 105; Ex. 512 at Column AF.) The list of images contained an address, a VHT identifying number, and a file name for each image. (Ex. 98 at 3-302.) Only 14 of the images on that list are at issue in this suit. (Summ. Image SS at 1.)[8] Without adequate identification of an image, technical realities limited Zillow's capacity to identify an image as infringing and remove the image.[9] (2/2/17 Trial Tr. at 100:13-102:6, 125:23-127:3.)

         C. The Jury's Verdict

         The jury found that Zillow directly infringed on all 28, 125 of the VHT Photos. (Verdict Form at 1:17-2:3.) The jury also found that Zillow contributorily and vicariously infringed VHT's copyrights, but because the verdict form instructed the jury not to double-count Zillow's infringements, it is not clear how many copyrights the jury found Zillow indirectly infringed. (Id. at 2:5-3:7.) After rejecting Zillow's affirmative defenses of license and fair use (id. at 3:11-4:13), the jury awarded actual damages of $2.84 per photograph, or $79, 875.00 (id. at 4:15-19). The jury also awarded $8, 247, 300.00 in statutory damages. (Id. at 6:7-9.) Because some of the statutory and actual damages were duplicative (see Id. at 4:15-6:9), VHT elected to receive statutory damages for the 19, 312 VHT Photos that were eligible for statutory damages (see Summ. Image SS at 1; Ex. 512 at Column AR) and actual damages for the remaining 8, 813 VHT Photos (see Summ. Image SS at 1; Ex. 512 at Column AR; Dam. Election (Dkt. # 286) at 1).

         Pursuant to the jury's verdict and VHT's damages election, the court entered judgment for VHT in the amount of $8, 272, 328.92. (See Judgment (Dkt. # 296).) The instant motions followed.

         III. ANALYSIS

         A. Zillow's Motion for Judgment Notwithstanding the Verdict

         Zillow contends that it is entitled to judgment notwithstanding the verdict with respect to the vast majority of the VHT Photos. (JNOV Mot. at 7:16-13:25.) Zillow reaches this conclusion by whittling the field of VHT Photos on which, in Zillow's estimation, VHT presented sufficient evidence of direct infringement. (See id.) Specifically, Zillow argues that the 22, 109 VHT Photos that Zillow never displayed on Digs only plausibly violated the reproduction right, see 17 U.S.C. § 106(1), and VHT failed to present sufficient evidence that Zillow caused the reproduction of any undisplayed VHT Photos (JNOV Mot. at 8:5-10:11). In the alternative, Zillow contends that it is entitled to judgment notwithstanding the verdict on its fair use affirmative defense as it pertains to the 22, 109 undisplayed VHT Photos. (Id. at 20:6-21:20.)

         6, 015 of the remaining 6, 016 VHT Photos were undisputedly displayed on Digs. (See Ex. 512 at Column AW.) However, Zillow argues that of those 6, 015 displayed VHT Photos, 2, 094 VHT Photos were non-searchable and therefore no evidence shows Zillow caused them to be copied. (JNOV Mot. at 10:11-13:25.) Finally, Zillow argues that no evidence shows whether 3, 438 of the searchable VHT Photos went through any moderation by Zillow, and Zillow therefore concludes that the direct infringement verdict cannot stand as to those images. (Id.)

         By excluding the 22, 109 undisplayed VHT Photos; the 2, 094 non-searchable, displayed VHT Photos (including the image that Zillow also sent in an email); the 3, 438 unmoderated, displayed VHT Photos; and the one VHT Photo included in a blog, Zillow contends that it is entitled to judgment notwithstanding the verdict on VHT's direct infringement claims regarding all but the 483 remaining VHT Photos. (See JNOV Mot. at 2 n.1; JNOV Reply (Dkt. # 307) at 1:1-5.) Zillow then argues that under any of VHT's indirect infringement theories, VHT presented insufficient evidence to support a liability verdict as to any of the VHT Photos besides the 131 that were added to Digs after VHT first specifically identified them. (JNOV Mot. at 14:10-19:23 & n.9.) Zillow therefore moves for judgment in its favor on all counts of copyright infringement besides the 483 counts of direct infringement and 131 counts of indirect infringement and for a new trial on those claims as to those VHT Photos.[10] (See generally id.; see also Reply at 1:1-5.) In the alternative to judgment notwithstanding the verdict, Zillow requests a new trial as to all infringement claims and all 28, 125 VHT Photos. (See JNOV Mot. at 6:23-7:16, 10:10-11.) To the extent the court does not vacate the liability verdict, Zillow also argues that VHT presented insufficient evidence that any of Zillow's infringements were willful and seeks judgment notwithstanding the verdict regarding the 3, 373 images that the jury found Zillow infringed willfully. (See Id. at 21:20-23:17; Verdict Form at 5:21-6:5.)

         1. Legal Standard

         The court may grant Zillow's renewed motion for judgment as a matter of law if it “finds that a reasonable jury would not have a legally sufficient evidentiary basis” to find for VHT. Fed.R.Civ.P. 50(a)-(b). To prevail, Zillow must show that VHT failed to support its claims with “substantial evidence.” Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014). “Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion even if it is possible to draw two inconsistent conclusions from the evidence.” Landes Constr. Co. v. Royal Bank of Can., 833 F.2d 1365, 1371 (9th Cir. 1987) (citing St. Elizabeth Cmty. Hosp. v. Heckler, 745 F.2d 587, 592 (9th Cir. 1984)); see also Weaving, 763 F.3d at 1111.

         The court must view the evidence and draw all reasonable inferences in VHT's favor. Ostad, 327 F.3d at 881. The court may not weigh the evidence or assess the credibility of witnesses in determining whether substantial evidence exists. Landes Constr., 833 F.2d at 1371. Granting a motion for judgment as a matter of law is proper if “the evidence permits only one reasonable conclusion, and the conclusion is contrary to that reached by the jury.” Id. Judgment as a matter of law “is appropriate when the jury could have relied only on speculation to reach its verdict.” Lakeside-Scott v. Multnomah Cty., 556 F.3d 797, 802-03 (9th Cir. 2009).

         Because it is a renewed motion, a proper post-verdict motion for judgment as a matter of law is limited to the grounds asserted in the movant's pre-deliberation Rule 50(a) motion. EEOC v. GoDaddy Software, Inc., 581 F.3d 951, 961-62 (9th Cir. 2009) (citing Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003)). The standard recited above therefore applies to the issues properly preserved in Zillow's Rule 50(a) motion and renewed in Zillow's Rule 50(b) motion. On the other hand, Zillow must show that the jury plainly erred and that the error constitutes a manifest miscarriage of justice as to any arguments that it raises for the first time in its Rule 50(b) motion. Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 888 (9th Cir. 2002).

         2. Direct Infringement

         Zillow's argument regarding VHT's direct infringement claims relies heavily on Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657 (9th Cir. 2017), which the Ninth Circuit issued the day trial began.[11] In Giganews, the Ninth Circuit clarified several bedrock aspects of copyright infringement liability. See generally Id. Most relevant to VHT's direct infringement claims, the Ninth Circuit confirmed that direct copyright infringement has a causation component, often referred to as “volitional conduct, ” that a plaintiff must prove. Id. at 666. “‘Volition' in this context does not really mean an ‘act of willing or choosing' or an ‘act of deciding, ' . . . .” Id. (quoting Volition, Webster's Third New International Dictionary (1986)). “Rather, . . . it ‘simply stands for the unremarkable proposition that proximate causation historically underlines copyright infringement liability no less than other torts.'” Id. (quoting 4 Nimmer on Copyright § 13.08(c)(1) (2016) (Matthew Bender, Rev. Ed.)).

         “The volitional-conduct requirement is not at issue in most direct-infringement cases; the usual point of dispute is whether the defendant's conduct is infringing (e.g., Does the defendant's design copy the plaintiff's?), rather than whether the defendant has acted at all (e.g., Did this defendant create the infringing design?).” Am. Broad. Cos. v. Aereo, Inc., --- U.S. ---, 134 S.Ct. 2498, 2513 (2014) (Scalia, J., dissenting). But where, as here, “a direct-infringement claim is lodged against a defendant who [arguably] does nothing more than operate an automated, user-controlled system, ” the volitional-conduct-or proximate causation-requirement “comes right to the fore.” Id. Due to the timing of the Giganews decision, much of the dispute over Zillow's direct infringement claims turns on pure questions of law as opposed to the sufficiency of the evidence. (See generally JNOV Mot.; JNOV Resp.; JNOV Reply.) The court now turns to those arguments.

         a. Clarifying the Parties' Burdens

         Before turning to each category of the VHT Photos that Zillow raises, the court clarifies an implicit disagreement underlying the parties' briefing on this issue. In its response, VHT repeatedly refers generally to Zillow's volitional conduct or seeks to impute Zillow's volitional conduct as to one category of images to another category of images or to Digs writ large.[12] Some of VHT's arguments in this vein refer to the court's previous rulings in this case.[13]

         VHT's burden in opposing Zillow's motion is to identify legally sufficient evidence to uphold the jury's verdict on the issues Zillow challenges. See Ostad, 327 F.3d at 881; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (equating the court's analysis under Rule 50 to its analysis under Rule 56). As the court has discussed, the parties litigated this unwieldy case by stipulating to the number of VHT Photos at issue and certain pertinent characteristics of each VHT Photo. (See Ex. 512; Ex. 600 ¶ 12.) Those stipulated categories and characteristics are a part of the evidentiary record. (See Ex. 512.) To support the jury's entire verdict, however, VHT cannot merely show legally sufficient evidence that Zillow took volitional conduct toward some subset of the VHT Photos. See Giganews, 847 F.3d at 666. Rather, VHT must show substantial evidence of volitional conduct as to each category of the VHT Photos that Zillow challenges. Weaving, 763 F.3d at 1111; see Giganews, 847 F.3d at 666; Landes Constr., 833 F.2d at 1371. Of course, that evidence may overlap to the extent reasonable inference permits. Ostad, 327 F.3d at 881.

         In its summary judgment order, the court concluded that “several Digs-specific actions, ” including design moderation and implicit digs, “cross the line into volitional conduct.” (12/23/16 Order at 31:3-4.) The summary judgment record and briefing did not permit for further parsing of the VHT Photos.[14] The court accordingly denied summary judgment as to all of the Digs-related images-the VHT Photos, as defined herein-and granted summary judgment in Zillow's favor as to whether Zillow infringed the images unrelated to Digs. (12/23/16 Order at 32:12-20); see also supra n.2. At various points, VHT apparently seeks to impute to all of the VHT Photos the court's summary judgment rulings regarding certain conduct that a reasonable factfinder could deem a volitional act. (See, e.g., JNOV Resp. at 7:2-16.) Again, part of VHT's burden at trial was to present legally sufficient evidence that Zillow caused the copying of each VHT Photo. See Giganews, 847 F.3d at 666. Where VHT failed to do so, the court's summary judgment rulings are of no moment.

         Having clarified the parties' respective burdens and the impact of the court's previous rulings, the court analyzes each category of the VHT Photos that Zillow challenges in its motion.

         b. Undisplayed VHT Photos

         Zillow first argues that it did not cause the copying of-and therefore did not directly infringe-the 22, 109 undisplayed VHT Photos. (JNOV Mot. at 7:17-10:11; 2/7/17 Trial Tr. at 91:11-92:8; Ex. A-490; Ex. 512 at Column AW; Summ. Image SS.) VHT responds by identifying Zillow's supposedly volitional-and therefore legally sufficient-conduct. (JNOV Resp. at 4:8-10:11.) VHT pursued direct liability claims at trial for infringement of its reproduction right; right to prepare derivative works, also known as the adaptation right; distribution right; and display right. (See Pretrial Ord. at 2:7-10; Final JIs at 19:2-8); 17 U.S.C. § 106(1)-(3), (5). The court addresses the sufficiency of the evidence presented at trial as to each of these four protected rights.

         i. Reproduction Right

         VHT points to several pieces of evidence in support of its claim that Zillow directly infringed the reproduction right in the undisplayed VHT Photos. (JNOV Resp. at 7:16-8:9.) For the following reasons, the court rejects VHT's contention that this evidence is legally sufficient.

         VHT first points out that Zillow “made the decision to create 16 Digs-specific copies of each photo added to Digs and wrote the algorithms to cause those copies to be created.” (Id. at 7:21-24; see also 2/2/17 Trial Tr. at 86:8-88:17, 109:12-111:11; Ex. 302.) The number of copies Zillow designed its systems to create has no bearing on causation. See Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F.Supp. 1361, 1369 (N.D. Cal. 1995). Rather, the system that created 16 Digs-specific copies of whatever image the user selected is analogous to a copy machine that produces 16 different-sized images each time a user places an image in it and hits the copy button. See Id. (“Netcom's act of designing or implementing a system that automatically and uniformly creates temporary copies of all data sent through it is not unlike that of the owner of a copying machine who lets the public make copies with it. Although some of the people using the machine may directly infringe copyrights, courts analyze the machine owner's liability under the rubric of contributory infringement, not direct infringement.” (internal footnote omitted)); see also Giganews, 847 F.3d at 670 (agreeing with and adopting this reasoning); CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 550 (4th Cir. 2004) (concluding that to hold an entity liable for direct infringement, “something more must be shown than mere ownership of a machine used by others to make illegal copies”). The number and size of the copies is irrelevant to what entity or entities-Zillow, its users, or some combination-proximately caused the infringement of VHT's reproduction right. See Giganews, 847 F.3d at 666.

         VHT also points to evidence that Zillow “engaged in volitional conduct when it decided to change course and allow reproduction of Digs-specific copies of so-called deciduous images.” (JNOV Resp. at 8:6-8; 2/2/17 Trial Tr. at 81:22-86:7, 118:16-119:24; 2/7/17 Trial Tr. at 74:20-75:5, 104:16-25, 106:5-11; Ex. 30; Ex. 84; Ex. 106.) The evidence VHT cites indeed shows that Zillow “change[d] course and allow[ed] reproduction” of deciduous images. (JNOV Resp. at 8:7.) Similarly, a copy shop owner “allow[s] reproduction” (id.), but without more, the copy shop owner does not thereby proximately cause the copyright infringement undertaken by his customers, see Netcom, 907 F.Supp. at 1369; CoStar, 373 F.3d at 550; Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 132 (2d Cir. 2008) [hereinafter, Cablevision]; Aereo, 134 S.Ct. at 2513 (Scalia, J., dissenting). This evidence too fails to advance VHT's theory that Zillow directly infringed VHT's reproduction right.

         Finally, VHT identifies implicit digs, a process Zillow performed on 1, 029 VHT Photos. (JNOV Resp. at 8:3-6; 2/2/17 Trial Tr. at 115:1-117:18; Ex. 512 at Col. AE.) VHT contends it would be “illogical” to conclude that users who fail to complete their dig “engaged in the volitional act that caused the implicit Dig copies to be created.” (JNOV Resp. at 8 n.6.) In this context, however, volition does not refer to acts of willing, choosing, or deciding. See Giganews, 847 F.3d at 666 (citing Volition, Webster's Third New International Dictionary (1986)). Rather, the volitional-conduct doctrine discerns whether a defendant-host's actions are “sufficiently proximate to the copying to displace [or join] the customer as the person who ‘makes' the copies.” Cablevision, 536 F.3d at 132; see also Aereo, 134 S.Ct. at 2505-06 (making clear that multiple parties may proximately cause direct infringement); (JNOV Resp. at 4:8-5:4 (arguing that Giganews did not adopt an “immediate cause” requirement).) Although the user's interaction with an implicitly dug image is slightly different than the user's interaction with a dug image, no evidence suggests that Zillow takes any action toward implicitly dug images that it does not take toward every image that a user follows through in posting to Digs. (See JNOV Resp. at 8:3-6.) Rather, Zillow's system, including implicit digs, “responds automatically to users' input . . . without intervening conduct by” Zillow. CoStar, 373 F.3d at 550; see also Giganews, 847 F.3d at 670. There is thus no legally relevant distinction between implicit digs and Digs's regular functionality.

         Having reviewed the evidence and legal authority that VHT contends supports the liability verdict on VHT's claim for direct infringement of its reproduction right in the undisplayed VHT Photos, the court concludes that a rational juror could not have found in favor of VHT. The court next turns to the adaptation right.

         ii. Adaptation (Derivative Works) Right

         For similar reasons, the court concludes VHT failed to present sufficient evidence that Zillow caused a violation of VHT's adaptation right. In addressing that right, the parties rely on the same evidence to support their arguments-Jason Gurney's testimony regarding how Zillow's automated systems create one or more scaled copies of every image that users add to Digs. (See JNOV Mot. at 9:13-18 (citing 2/2/17 Trial Tr. at 109:12-111:11); JNOV Resp. at 8:10-13 (same).) In addition, VHT points to an image sizing chart that shows the precise image sizes that Zillow's system automatically renders. (JNOV Resp. at 8:13 (citing Ex. 302).) As the court explained in addressing the reproduction right, see supra § III.A.2.b.i., Zillow's systems function identically for the millions of noninfringing photos uploaded daily and the comparatively few infringing VHT Photos that Zillow's users uploaded (2/2/17 Trial Tr. at 109:12-22); see CoStar, 373 F.3d at 550 (“[T]o establish direct liability . . ., something more must be shown than mere ownership of a machine used by others to make illegal copies. There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner.”). The jury did not hear substantial evidence of “intervening conduct” by Zillow that amounts to more than “mere ownership of a machine used by others to make illegal copies.” CoStar, 373 F.3d at 550. Accordingly, the court concludes that VHT presented insufficient evidence at trial from which a reasonable juror could conclude that Zillow caused a violation of VHT's adaptation right in the undisplayed VHT Photos.

         iii. Display Right

         The court also grants Zillow's motion as it pertains to the undisplayed VHT Photos violating the display right. At trial, VHT and Zillow stipulated that the spreadsheet of VHT Photos “summarizes relevant data about each image, including . . . certain facts relating to Zillow's use of the image on Digs.” (Ex. 600 ¶ 12.) They also agreed that the jury “must treat every fact in th[e] spreadsheet as proven.” (Id.; see also Id. at 1 (requiring the jury to treat all of the facts in Exhibit 600 as “having been proved”).) The spreadsheet includes a column entitled “Displayed” and 28, 125 rows of either “Y[es]” or “N[o]” values. (Ex. 512 at Column AW.) That “Displayed” column and the corresponding yes-or-no values indicate that 22, 109 VHT Photos were not displayed. (Id.; see also Ex. A-490; Summ. Image SS at 1.)

         VHT now argues that despite the parties' stipulation, it presented adequate evidence at trial for the jury to conclude that Zillow in fact displayed every undisplayed VHT Photo. (JNOV Resp. at 11:5-14:13.) The incoherence of this statement belies its inconsistency with the parties' agreement. No amount of evidence or speculation by VHT could persuade a reasonable juror to reject a fact that he or she “must treat . . . as proven.” (Ex. 600 ¶ 12; cf. JNOV Resp. at 11:13-12:6 & n.9.) The court accordingly rejects the majority of VHT's arguments as to the display right as inconsistent with its stipulation.

         Only one of VHT's arguments is arguably consistent with the jury treating as proven that the 22, 109 undisplayed VHT Photos were, in fact, displayed. VHT argues that “web site operators violate the display right by making images available for public display on websites.” (JNOV Resp. at 12:7-8.) In other words, VHT argues that the jury could reasonably conclude that Zillow violated VHT's display right by merely making the VHT Photos available on Digs. (Id. at 12:7-13:6.)

         This theory of liability relies on the “making available” right, which is a corollary to the rights enumerated in Section 106 of the Copyright Act. See generally U.S. Copyright Office, The Making Available Right in the U.S. (2016) [hereinafter, “The Making Available Right”], available at https://www.copyright.gov/docs/ makingavailable/ (last accessed June 20, 2017) (analyzing the impact of several international treaties on United States copyright law, and concluding that United States law fully protects the making available right). The Copyright Office interprets Section 106(5) of the Copyright Act to confer “an exclusive right to offer the public access to images on demand.” The Making Available Right at 48; see also Id. at 81 (“[T]he Copyright Office concludes that U.S. law provides the full scope of protection required by the making available obligation.”). This interpretation focuses liability for direct copyright infringement on the provision of access rather than actual delivery. Id. at 1. In other words, under the Copyright Office's reading, the making available right attaches liability for violating the display right when a defendant makes an image available to the public rather than when the public accesses the image. Id. at 47-48 (“It is well established that this right ...


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