Vht, Inc. v. Zillow Group, Inc.
918 F.3d 723
9th Cir.2019Background
- VHT is a professional real estate photography company that licenses photos to brokers, listing services, and agents; Zillow ingests those photos via third-party data feeds and displays them on its Listing Platform and a curated, searchable feature called Digs.
- VHT sued Zillow for copyright infringement (direct and secondary) over thousands of photos used on the Listing Platform and Digs; the jury found infringement and awarded damages, and the district court later granted partial JNOV reducing some findings and damages.
- Key factual distinctions: Listing Platform images are uploaded and labeled (evergreen vs. deciduous) by feed providers; Digs includes images that Zillow moderators select and tag for searchability, plus user-saved ‘‘personal boards’’ and ‘‘Implicit Digs.’'
- Legal focus: (1) whether Zillow engaged in the volitional conduct necessary for direct infringement given automated systems and third-party inputs, (2) whether Digs’ searchable tagging is a transformative fair use, (3) whether Zillow is secondarily liable (contributory/vicarious), and (4) damages issues (compilation vs. per-photo statutory damages and willfulness).
- The Ninth Circuit affirmed summary judgment for Zillow on direct infringement for Listing Platform photos and for many Digs photos (non-displayed and displayed-but-non-searchable), affirmed VHT’s win on a subset of 3,921 displayed, searchable Digs photos (rejecting Zillow’s fair use at summary judgment), reversed the willfulness finding, affirmed rejection of secondary liability, and remanded the compilation/statutory-damages issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct infringement — Listing Platform photos (post-sale) | Zillow displayed photos beyond the licenses provided to feed partners; Zillow’s decisions and failure to remove after notice show volitional conduct | Photos were uploaded/marked by feed providers; Zillow’s automated rules and trumping logic show no volitional selection or control; Zillow reasonably investigated after notice | Affirmed for Zillow — no volitional conduct; no direct infringement on Listing Platform photos post-sale |
| Direct infringement — Digs searchable photos | Zillow’s tagging and presentation on Digs directly caused display and reproduction of VHT images | Some Digs images were user-selected or automatically cached; only moderator-selected searchable images involved Zillow’s volitional conduct | Mixed: JNOV affirmed for many Digs photos (non-displayed and displayed-but-non-searchable); jury verdict as to 3,921 moderator-selected searchable images upheld (Zillow did not appeal that portion) |
| Fair use — Digs searchable functionality | Zillow: Digs is a search-like, transformative function (akin to Google/Arriba/Google Books), so fair use | VHT: Digs preserves and displays full, creative images for the same aesthetic purpose, not transformative; harms potential licensing market | Affirmed for VHT — summary judgment: Digs’ searchable tagging/display is not fair use for the searchable set |
| Secondary liability (contributory and vicarious) | Zillow had knowledge/notice and could take simple measures (e.g., use property addresses) or employ watermark detection; Zillow had the ability to supervise and financial interest | Zillow lacked specific identifying info (Zillow Image ID/URL) needed to find and remove images; tools and prompts do not induce infringement; no practical ability to police uploads at scale | Affirmed for Zillow — insufficient evidence of contributory or vicarious infringement |
Key Cases Cited
- A&M Records, Inc. v. Napster, 239 F.3d 1004 (9th Cir.) (volitional-conduct and secondary liability principles in online context)
- Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) (search-engine thumbnails can be transformative fair use)
- Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (search-engine use of thumbnails is highly transformative; discussion of display right scope)
- Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657 (9th Cir.) (volitional-conduct/causation standard for direct infringement of automated systems)
- Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir.) (Google Books fair use analysis; search and snippet functions as transformative)
- Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (inducement liability requires affirmative steps to encourage infringement)
- CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir.) (distinction between active selection and passive, automatic hosting)