On March 15, 2019, in VHT v. Zillow Group Inc., 2:15-cv-01096, the U.S. Court of Appeals for the Ninth Circuit issued a significant copyright decision, ruling, among other things, that Zillow's online service did not directly infringe real estate photos uploaded to its site by users merely by hosting those photos and making them available to others. With respect to Zillow's arrangement and cataloging of such photos, however, the appellate court found Zillow liable for direct infringement, rejecting the company's attempt to analogize itself to a search engine and its claim for protection under the fair use doctrine. The case is of particular importance for online service providers that host, organize, and manipulate user-submitted content. Wilson Sonsini Goodrich & Rosati filed an amicus curiae brief in the case on behalf of the Internet Association and the Computer and Communications Industry Association.
District Court
Zillow's online real estate platform hosts photos of real estate, most of which are uploaded by users. VHT sued Zillow, claiming that users had uploaded VHT's photos to Zillow without VHT's permission and that Zillow was liable for both direct and secondary copyright infringement for making the photos available to others through its service. Consistent with a long line precedent, the U.S. District Court for the Western District of Washington granted partial summary judgment in favor of Zillow on direct infringement of certain photos uploaded by users to Zillow's service because Zillow lacked the requisite "volitional conduct." The volitional conduct requirement mandates that, to state a claim for direct infringement, there must be "some element of volition or causation which is lacking where a defendant's system is merely used to create a copy by a third party."1 Because Zillow played no active role in the selection or curation of the photos uploaded by users, the court held that Zillow could not be held liable for direct infringement.
But the district court found that Zillow had engaged in volitional conduct regarding those user-uploaded photos that it selected, curated, and tagged for search functionality, and allowed VHT's direct infringement and secondary infringement claims to proceed to trial. At trial, a jury awarded VHT $8.27 million in damages for direct and secondary infringement of those photos. After trial, the district court partially granted Zillow's motion for judgment notwithstanding the verdict on secondary...
