Legal Case Summary

E. M. Crosby from the assessment guide for the appellant and across appellees, Zillow Incorporated and Zillow Group Incorporated. This is across appeal. I would like to reserve half my time for rebuttal. And with that, I will proceed. All right. VHT's arguments on both sides of this appeal revolve around a central conceit, which is inconsistent with the facts of this case. VHT would like to consider real estate photographs as if they were music files or MP3s, which are inherently subject to third party claims of copyright, identifiable by artists and albums and publishers in metadata that's associated with them, that's necessary for them to be found and used, and distinguishable from one another with respect to, on their face with respect to who Owens are creates them. Real estate photos are nothing like that. The lack of any similar claims to VHT's in this case is the dog that didn't bark. VHT had an opportunity to get discovery from Zillow to see if other photo studios were making similar claims regarding the same uses that Zillow was making with millions and millions of photos that it received from realtors and multiple listing services. There was no evidence of any such thing. I need a little help here at the beginning. You're certainly not contending that photographs can't be subject to copyright. Absolutely not, Your Honor. And their photos are subject to copyright. They are, Your Honor. Right, and they took them for certain purposes. Their photos are forward to you, subject to the copyright agreement between VHT and the Center. Absolutely, Your Honor. No, so okay, okay. And I want to make sure that you were not objecting any of that. No, no, not at all, Your Honor. But VHT, they are subject to copyright, but they are unlike music files in cases like Rockster and Napster in that they are like a needle in a pile of needles. The ones that are subject to a third party claim of copyright that is antagonistic to the rights that Zillow's providers grant to them as asserted to be antagonistic

. Look, just like all the rest, there's been no claim, there's been no evidence in this case that any other photo studio has asserted that it's licensed to its customers inconsistent with the rights that those customers report to grant to Zillow when they load those photographs on Zillow's system. And so what? Well, so what it makes an enormous amount of difference for the issues of direct infringement and for the issues of secondary liability. As and Judge Robart, who is here with us today, I think grasped that distinction when he granted judgment as a matter of law for Zillow on VHT's direct infringement claims, respecting images that Zillow took no specific action towards, and also for VHT's secondary liability claims, with respect to images for which Zillow had received no notice in any form whatsoever, prior to those images being loaded on its system and posted by its users to different areas of its website. You don't break these up because there's multiple categories, I guess I would say. There are multiple categories. Are you talking now about the digs photos and the issues of direct and secondary or proprietary liability? So the direct infringement issue spans both the digs photos as well as the photographs that were the subject of Zillow's summary judgment before trial. Listing plan. Zillow calls them home details pages, but the source. But basically this large group of photos that were available on its plan. Yes, Zillow's. So we break those up, please. So as to the summary judgment that Judge Robert granted on those photos, your position is. So the issue is essentially the same, right? So Judge Robert understood the Volitional Act doctrine as articulated in Justice Scalia's dissent and aerial, which this Court has favorably quoted in Amazon and Giganus as boiling down to whether an action was taken that was specific to a copyrighted work. Selection is the classic example, but it really boils down to did the actor do something with respect to this particular work. And in both the cases of the listing images of the home detail page images and the digs images, there was never, and there is no evidence in the record whatsoever, that Zillow ever took an act that was specific to any of those images that resulted in an infringement. The ones for which Judge Robert granted judgment, either by summary judgment or judgment as a matter of law. So in the case of the digs images, Zillow's website automatically received and processed in exactly the same way every image that every realtor, multiple listing service, sent to it. Those realtor's, multiple listing services, they chose what photographers they were going to hire. They chose what images to load into their listings, and they also chose what rights to grant to Zillow to those images, or at least to tell Zillow that they had and warrant to Zillow that they had. And when those images were received on Zillow's site during at least some period of time, there was essentially a mechanism as part of Zillow's image processing system. That would create versions of those images that corresponded to different resolutions on Zillow's website so that when somebody then looked at a page that needed an image to be displayed at this size or in this proportion, that that image would already be there. And after a while, Zillow realized that that wasn't necessary, that the processing of its computers was fast enough, that it needed to do that, didn't need to do that anymore. But to the extent that that generation of those copies could be deemed an infringement, we believe it can't, because I think it falls clearly into the cashing cases. But even if it could be deemed an infringement, and Judge Robart never reached this issue, that that was caused by Zillow's providers uploading them to Zillow's website in the case of the listing photos. And with respect to the photos on digs, there's a set that's searchable

. It's a Zillow moderated some of these images, and Zillow personnel clicked on this image and says, we're going to put this in a set that people can search. That's a small portion of the images in this case, and Zillow's not appealed the finding of direct infringement for display of those images in this case. But for all the images, the creation of these copies, there were also copies that were created corresponding to resolutions on digs at the time that users posted these images. And those, all of those images were created in response to user interactions, and again, Zillow played no role in selecting which images users chose to save in this way. So in both instances, there's no act towards a specific photograph that Zillow took that resulted in any of those copies being made. And similarly, to the extent that once those images were placed on individuals non-searchable saving pages, saved pages called boards on. You see that? I don't want to stop your role of explanation, but there's a lot of different photos here and a lot of different categories, which I thought I understood and told you, started your argument to make them all one thing. So, so, so, so, I, you know, and maybe that's how you want us to think of it. It's either an up or down proposition, but as I look, if I look at these and I look, I think Judge Robard would was carefully trying to put things in different boxes for good reasons because they could be categorized in different ways. So, let me just ask you with respect to the digs photos, those that were displayed and searchable, my understanding was that Zillow said, yes, you know, we had the volitional conduct of tagging these so that they would reside in a searchable cache, or not cache, but in a searchable form. And then the question on those photos, for example, was, but is that fair use? Is that a misunderstanding? That's correct. So, Zillow has not disputed that a prima fascia case of directed fringeman has been made for those photos, and specifically because there was an action by a Zillow moderator that changed the availability of that photograph, and Zillow chose not to dispute whether any subsequent display was caused by that act. But if the court accepts this fundamental distinction that a volitional act requires an action directed towards a specific work, then those are the only works in the case where arguably any act, any infringement can be traced causally back to an action by Zillow. Those, those meaning the digs displayable and searchable. And then we would move to the typical fair use analysis. Correct. With respect to the searchability. So, European on those has to be that it's fair use, they, of course, say it's not fair. Right, and I think that the final number of these, well, it is, although they are significant because they were subject to... Almost 4,000 of them. Yeah, I mean, everything is relative, but they're significant because they were the subject, and I'm getting into my rebuttal time, but I'll keep going. They're significant because they were the subject of a statutory damages award that was enhanced for willfulness. Okay, so now, okay, now we're breaking it apart, and that's what I thought you were getting to, and that is that on these overall digs photos, judge Robart upheld willful liability for some 2700, willful conduct for some 2700 photos

. Correct, he did. And would you then restate your position on why willfulness is not a proper finding based on the record here? Sure. So, willful infringement requires an intent to infring, and that intent to infring can be shown by evidence of actual knowledge of the infringements or by recklessness or by willful blindness. Now, Judge Robart did not find actual knowledge, there was no actual knowledge. He also didn't address recklessness. He found there was willful blindness. Willful blindness under Ludvarts' opinion and others' lends requires not only is a subjective suspicion of a high de-likelihood of wrongful conduct, but affirmative actions that were taken to avoid learning about it. Let me read to you from testimony from Kristen Acre, it's SCR-80, you may be familiar with it. The questioning is related to when the same photo comes in from two different sources. One source says it's subject to an agreement with VHT that makes the use limited. I think deciduous is going to be the vocabulary. The other source says it's evergreen that is to say continuous usage, so that depending on which one of those you believe, you either can use it or not use it, apparently the Zillow's quote, trumping rules say that the more expanded uses what they do, and then question. Does Zillow do anything to investigate where one source, one feed, gave you those rights with respect to those photos and the other did not? Not so far as I know. Zillow just relies on the representation that are made in the agreements. Is that correct? Yes. In other words, that sounds as though you're on notice that there's a problem, and you choose the one more to add advantages to you without further inquiry. Well, is that not well-for-blindness? So there was, I think, a statement of her testimony, and specifically was that the rights from the different feeds were rights from VHT. The different rights that determine the trumping order are the ones that are specified in the agreements that Zillow has with the provider. There's no reference to VHT or any third party. And Zillow receives feeds from both listing services, individual realtors, and aggregators. And so with respect to an individual photo, the same photo may come to Zillow from three different sources. And so the difference relates to the rights that the individual provider has through that photo. So for example, if the realtor is the one who took the photo, they might own the copyright in that photo and be the higher trumping one. And so we generally, and I think there's testimony elsewhere in the record on this, that the trumping rules go by essentially who's closest to the listing and gives priority to the permissions that the person who's closest to the listing to the actual taking of the photo. So no, it doesn't indicate there's nothing intrinsically about that decision that relates to copyright or knowledge that trumping the, you know, when I get the photo from the realtor and the realtor says you can keep it up and the MLS says you can't, that keeping it up because the realtor said I could even though the MLS said I can't, there's nothing about that intrinsically that indicates an intent to infring a copyright

. And Judge Robard also did not find that that had any such implication to it. So the willful blindness, I mean, he didn't really address the other two aspects of it. But he attributed the willfulness to, to basically, see no evil here, no evil right? Well, and that's right. And what this court said in Ludevarts is that simple that indifference is not enough, that willful blindness requires an affirmative act to not learn. And Judge Robard's opinion, for that specific point of what Zillow did to keep itself in the dark, site's omissions, basically that it didn't follow up, that it didn't learn. But if you, Ludevarts says that's not enough, you need to have an affirmative act to avoid learning. And there's nothing in the record that indicates that. In fact, the opposite is true. When, when, Zillow, the H.T. came with its claims, Zillow responded by asking for licenses, asked to say, ask who are the, who are your customers? Right, and what's that correspondence that he wanted more information? And, and, and the H.T. dropped it, never provided Zillow with the information. And it turns out that the representative license that it gave Zillow was not constant across all of it. And, in fact, there are, in fact, some H.T. customers to which the science copyrights are exclusive rights to. So, although that is, the contract is typical, it's not uniform. Yeah, and my understanding, when you wrote back, and when you checked the specific photographs cited to you by V.H.T., a fair number of them, like maybe 30%, really didn't correspond. Well, I mean, the information that V.H.T

. gave, to Zillow was addresses. And so, you know, an address could have been reshot by another, by another realtor. It just gave an address of properties that they had shot at some time in the past. And so, Zillow looked at that and said, you know, at least 30% of these properties are, you know, either still on the market, or they're scheduled to take the photos down when it comes off the market. Which still doesn't show that the ones that were not in that 30% actually were V.H.T. photos. So, this goes to, but again, because so few of the photos at issue were the subject of that notice, the trial didn't really go into, you know, how sufficient that notice was in terms of providing knowledge to Zillow. But all the rest of the images in the suit were not subject to any notice that is actually in the record, was in the record before the jury on this case. So, the record on appeal includes many complaints with listings of images that were generated after discovery happened in this case. But in terms of actual notices to Zillow during the time period question, that's the only one. It doesn't concern very many of the images. It really is, as the low blue varts would be general notice at best. Thank you. I've lost. We'll give you some additional time, because I'm sure that V.H.T. will take some additional time. Thank you. May I please the court? I'm Steve Rommage, and I'm appearing this morning on behalf of the plaintiff and app, LV.H.T. And I listen very carefully to Mr

. Cosby's argument, and there was one word I kept listening for that I never heard, and that was jury. We had a jury trial here, and so a lot of these factual issues that Mr. Cosby raises are actually issues that the jury heard about, that the jury decided. The jury was properly instructed on every issue that you just heard about. No contest has to instructions about willfulness or fair use or the like. And the jury came back with an award, finding that Zillow had infringed copyright as to 28,125 copyrighted V.H.T. photos. And so we're here today really to stand up for that award in all of its entirety. That is not only us who, what Judge Robart affirmed, essentially adopted and rejudgement on after the post-traum motions, but also the portion of the jury referred to that he set aside, which we believe should be restored. So in the time I have what I want to cover is this. First I want to talk about the volitional conduct requirement because that's an issue that cuts across big swath of this case. It's what was principally relied upon by Judge Robart in setting aside the verdict as to most of the images that were the subject of the jury's verdict. And it was also the principle basis, the sole basis really, for summary judgment as to the listing site claims, which I believe your honor was talking about with Mr. Cosby at the outset. The home retail home details page. Yes. Yes. Listing platform. Yes. Exactly. So those are the summary judgment rulings that Judge Robart made. Then I want to turn to, I guess I'll turn next to willfulness after that because that was a subject of some discussion with the court. And then I want to talk briefly at the end about VHT's request at the court, at least at the very least, if it doesn't reverse on volitional conduct, restore the jury's verdict as to the 1,694 photos that Zillow made searchable, but as to which the jury's verdict was vacated

. So let me turn first to the volitional conduct issue and I'll do that in a slightly different order than Mr. Cosby covered it just because I think it's analytically easier to do. I want to first talk about it in the context of the award that was set aside, the verdict that was set aside and then in the context of the summary judgment that was granted by Judge Robart. So obviously any discussion of volitional conduct in this circuit has to start with giga news because it is the most recent case on the issue. It also is the case that most explicitly adopts volitional conduct post the Supreme Court's decision in area. Now giga news involved using that. I'm not particularly familiar with the use net, but I went back and looked at the briefs and giga news to understand it better. And that's a situation where users are the sole source of the content on the site. Users upload articles, the servers of giga news essentially serve as a receptacle for the upload of the articles and because of the nature of the use net, where peers share what is on their various servers, what's uploaded by users gets shared. That's the essence. What this court decided in giga news was that all giga news had done is set basic parameters for users to upload. It did not select and I quote any of the content available on its servers. It did not tell anyone quote what to upload, close quote, and it quote quickly removed, close quote, in fringing material when it received specific notice. So the court found, okay, giga news and those circumstances is nothing more than a passive host. That's a quote merely a passive host. It did not play any sort of an actor role, again, a quote. No evidence that it quote exercised control, close quote. Therefore, this court concluded it didn't cause it was not the causative factor in the upload of those images because it was not active. It was not directly liable. Its liability would have to be analyzed under the rubric of secondary liability. So the question is what are the facts here? And remember that when we think about the facts here, we have to think about them in the context of trying to sustain the jury's verdict because when you get a jury verdict, you have to indulge every inference in favor of that verdict. So here's what the jury could have found. The jury could have found that Zillow had this listing site with the home details, pages, and the likes. And that when it decided to start this digs part of its website, it went to that listing site and it put a save button on every single image that it had on the listing site. And it told users you can save this image to our dig site

. In fact, actually, when you look at the evidence, the button just said save. It didn't tell users exactly what was going to happen if they had saved. It said save. And when you click save, something popped up and said, keep saving. Keep saving said Zillow. And then when that button was pushed, what Zillow did is it made 16 copies. It didn't just save the image for the user. It made 16 copies, which then according to its protocols, which you can find at ER250, it made different size copies for different purposes that Zillow had, not purposes of the user. It decided as Mr. Crosby acknowledged whether to make those searchable images or not. It decided how to crop the images. It decided which ones were going to be available for public display, which ones would be available for private display. Those were all decisions that it made. And then and then images could be viewed for the vast majority over 19,000 could be viewed on people's private boards. Or if they were searchable in in addition, they could be viewed by members of the public just like they could be on people's boards. They could be viewed through searches going through the website. And now after it's caught with these infringements, because there's no question on the record that there was an infringement of VHT's rights in these images, after it's caught, this volitional conduct defense amounts to this. Zillow is saying that who really infringed the copy right. But the real primary infringer is the user who click save. That's the essence of their argument, because the nature of the volitional conduct requirement as Justice Scalia explains in area is a channeling function. You channel somebody either towards the rubric of primary liability or secondary liability. And if you're channeling towards secondary liability, because you find that they were not the cause of the infringement, what you are in essence saying is somebody else is the primary infringer. I guess I don't read the argument that way. I go all the way through up to where you say, well, it's somebody else is the infringer. Well, there's an infringement

. We know there's an infringement, right, because that's settled as a matter of fact. Well, it depends on which photos. No, actually, all 28,000. There is an infringement. There is no question of that, because the jury found that there is no, there is no error assigned to that finding. They are assigning error to volitional conduct, which is the question of who is the cause. Correct. Because that's what Gigan is really says. This isn't about motive. It's about who's the cause. So the question is, is Zillow the cause or is the user the cause? And I think your honors that the jury, who we give these questions to, was entitled to find that the entity that put that save button there, the entity that decided to make 16 copies, the entity that decided to crop them for its own use. I mean, this is not a situation where those 16 copies went to the user. Those 16 copies were used by Zillow in its business to create a website. It's as if in Giganews, Giganews didn't just take the article and put it on its server and allow its peers to access it. It's as if Giganews said, this is a good article. We're going to make 16 copies of it. And if we like it enough, we're going to maybe put it in a prominent place on our website. Let me ask you with a little more granularity on the images that were not displayed. Yes. And a small amount of those were searchable, but they were not displayed. What is your argument in terms of elition and in terms of which copyright right was being infringed? There are a lot of things actually embedded into what looks like a simple question. I understand that. I'm asking you. I'm just explaining. Well, let me break them down

. So first of all, the first thing that's embedded in there is the images that were not displayed because the reality is we don't actually know. There's a stipulation in the record and that's obviously a subject that we may have to get to that your honors may have to get to and of course they're deciding this. The stipulation says that there is a particular spreadsheet that was exhibit 512 and it said you have to take every fact on this spreadsheet as true. As to display the quote fact, close quote was that in column AW it had the heading display and then it had to about one of two values, why or end. Now what did that mean? Testimony at trial established what it meant. The testimony at trial established that Zillow only recorded the test, well back up the testimony first established that what that meant was the Zillow had recorded display. Yes or no? What did Zillow record the display of? Images on the image details page with that man is not that the image had been displayed but that after it had been displayed somebody had clicked on it to get the crisper bigger image. So they did not record all displays. So to answer your first question your honor, we don't know with granularity how many images were displayed. We believe the jury was entitled to infer that every image was displayed, right? Because the evidence was there were you could be displayed on search pages, you could be displayed on the landing page, you could be. What good was the exhibit that the jury was told to accept as the facts? Because it provided whatever data was available on that topic. The jury knew for certain. But then the jury told to look at that exhibit to accept it as fact and it was a stipulated fact you're now saying but they could have disregarded that and found it. Oh no absolutely not you are not they could not have disregarded that in the sense that they could not have found that fewer images than what was shown on that spread sheet were displayed because everybody conceded that Zillow had kept a record showing that those have been displayed. But the testimony that that was incomplete came in without objection. Nobody objection, objected when the question was asked about the other ways in which images could be displayed. And particularly your honor, it seems clear that one that a jury could properly conclude that those images that Zillow tagged as searchable because they thought they were really good were likely to show up in search results. And so I think that at least as to the 1,692 or 94 searchable images as to which judgment was granted against my client. And those should be restored because those I think the evidence is pretty clear that the jury could have concluded they had been displayed. And I'll be honest with the honor. I know you asked a lot of things in that question. I think I've answered part of it and I can't remember the rest of your honor's question. But you've answered enough of it. Okay, all right. I appreciate that. So the bottom line on the volitional conduct as respects the aspect of the district court order throwing out part of the verdict. This case is not like those passive copy shop cases. That's the typical metaphor that's used in the case law by the Supreme Court by courts of appeals. Because that talks about somebody who walks into a copy shop with infringing content puts it on the plat and makes a copy and leaves. This is a case where somebody walked into a copy shop and Zillow had given them a menu of the things that they could click save on. And then when somebody clicked save on it, Zillow posted a copy like people wanted on their board inside the digs website. But then they took 15 extra copies for themselves, which they trimmed and shaped and used for their own purposes. So this isn't the copy shop. It doesn't fit. This is more like the area case or the MP3 tunes case or the perfect 10 versus Amazon, which talks about Google. All of which found that even though conduct by a website or a provider, even though it was quote automatic, even though it was automatic. That the site itself was the animating cause. It was engaged in relational content. And even though this by the your argument that you think it's the site itself, but then there's the other category of photos. We've been talking now about your 1,600 and some photos that were displayed that were displayed. You know, which were searchable, which were searchable, but not displayed or at least depending on how you. They were not on stipulation. Yes, understood. You're on it. But then there's the other images, which are displayed, but they're not searchable. So you can't put a little button on those as you're putting it. So what what actually there was a button. They got there by have by the user clicking that button. And even though Zillow chose not to make them searchable, it's still engaged in the same process of making 16 copies and trimming those. Because when bear in mind those 16 copies are not 16 identical copies

. So the bottom line on the volitional conduct as respects the aspect of the district court order throwing out part of the verdict. This case is not like those passive copy shop cases. That's the typical metaphor that's used in the case law by the Supreme Court by courts of appeals. Because that talks about somebody who walks into a copy shop with infringing content puts it on the plat and makes a copy and leaves. This is a case where somebody walked into a copy shop and Zillow had given them a menu of the things that they could click save on. And then when somebody clicked save on it, Zillow posted a copy like people wanted on their board inside the digs website. But then they took 15 extra copies for themselves, which they trimmed and shaped and used for their own purposes. So this isn't the copy shop. It doesn't fit. This is more like the area case or the MP3 tunes case or the perfect 10 versus Amazon, which talks about Google. All of which found that even though conduct by a website or a provider, even though it was quote automatic, even though it was automatic. That the site itself was the animating cause. It was engaged in relational content. And even though this by the your argument that you think it's the site itself, but then there's the other category of photos. We've been talking now about your 1,600 and some photos that were displayed that were displayed. You know, which were searchable, which were searchable, but not displayed or at least depending on how you. They were not on stipulation. Yes, understood. You're on it. But then there's the other images, which are displayed, but they're not searchable. So you can't put a little button on those as you're putting it. So what what actually there was a button. They got there by have by the user clicking that button. And even though Zillow chose not to make them searchable, it's still engaged in the same process of making 16 copies and trimming those. Because when bear in mind those 16 copies are not 16 identical copies. If you look at AR 250, they are each sized differently. And there's directions as to how you crop each of those 16 copies. Because what they did is they made those 16 copies and trimmed them for every use they could imagine. And then later decided whether to make them searchable. So essentially. And for those that they did not make searchable, what happened to those? Those went to people's boards. So if your honor had an account on Zillow and you click save, that would go to your board. And that board and let's say you're a real estate perfect. But only to the person who clicked. No, they're they're publicly available. But but they're not going to show up in search results. So somebody will see them if they decide, oh, I want to see what judge Fletcher likes. And they go to your page. They'll all be there unless they're marked private and a very small number of these images were marked private. And the jury saw a summary of that. So that's a distinction. And could people have gone there? And my and my page is automatically available to the general public. Yes, it is unless they're marked private, exactly. And and remember that a lot of these pages are not judge Fletcher. What they are is real estate broker or interior designer or contractor. And so the whole purpose. Indeed, there's testimony that Zillow sold this to people as saying millions of people will put eyeballs on your page and see the images you save. So there was an intent to derive traffic to those. If your honors have no more questions on that specific topic, I wanted to talk briefly about the summary judgment order and how volitional conduct figures in there. And could you make sure to get to the willfulness question? I think I better make sure in light of that, your honor

. If you look at AR 250, they are each sized differently. And there's directions as to how you crop each of those 16 copies. Because what they did is they made those 16 copies and trimmed them for every use they could imagine. And then later decided whether to make them searchable. So essentially. And for those that they did not make searchable, what happened to those? Those went to people's boards. So if your honor had an account on Zillow and you click save, that would go to your board. And that board and let's say you're a real estate perfect. But only to the person who clicked. No, they're they're publicly available. But but they're not going to show up in search results. So somebody will see them if they decide, oh, I want to see what judge Fletcher likes. And they go to your page. They'll all be there unless they're marked private and a very small number of these images were marked private. And the jury saw a summary of that. So that's a distinction. And could people have gone there? And my and my page is automatically available to the general public. Yes, it is unless they're marked private, exactly. And and remember that a lot of these pages are not judge Fletcher. What they are is real estate broker or interior designer or contractor. And so the whole purpose. Indeed, there's testimony that Zillow sold this to people as saying millions of people will put eyeballs on your page and see the images you save. So there was an intent to derive traffic to those. If your honors have no more questions on that specific topic, I wanted to talk briefly about the summary judgment order and how volitional conduct figures in there. And could you make sure to get to the willfulness question? I think I better make sure in light of that, your honor. Let me spend a minute if your honor is okay with that on the summary judgment. And then I will go to willfulness as to the listing site. It's important to understand there that it's a situation where the listing has expired. And so the VHT license no longer authorizes the use of the image because it only authorizes the use of the image while the listing is up and live. And so the question is when the issue when the image stays on the site after the listing dies after the property is sold. Does Zillow engage in volitional conduct that causes it to stay on? And the answer to that is that when the property is sold, Zillow decides what image to display. Because if the rights on the listing site as shown are deciduous, what Zillow does is it takes them down and then it looks for evergreen rights for the same property. That's what the testimony shows. And then it would make the choice to restore those evergreen rights, those images that may have been from a prior or even a simultaneous listing to the site. It was on notice beginning in 2014 that it's continued display of those images violated VHT's rights. But in January of 2015, and I think the sequence of this got a little bit messed up and we'll talk about it in willfulness as well. In January of 2015, VHT gives Zillow its license. It's form license and says see how it expires. In contrary to what Zillow says, the jury was entitled to find that after that, Zillow basically did nothing. It audits show that Zillow continued to leave up evergreen, pardon me, deciduous images as if they were evergreen. Then traced to VHT's rights. No, because of course this was resolved on summary judgment. Right. And so those didn't get to trial. Right. And so there wasn't testimony as to how many if any were traceable to reach the. Exactly. The point is that a jury could have found, could have found that Zillow made the choice as to what was going to continue on the listing site. And so they are responsible in the sense of being direct infringers, not just secondary. Let's talk a bit about willfulness

. Let me spend a minute if your honor is okay with that on the summary judgment. And then I will go to willfulness as to the listing site. It's important to understand there that it's a situation where the listing has expired. And so the VHT license no longer authorizes the use of the image because it only authorizes the use of the image while the listing is up and live. And so the question is when the issue when the image stays on the site after the listing dies after the property is sold. Does Zillow engage in volitional conduct that causes it to stay on? And the answer to that is that when the property is sold, Zillow decides what image to display. Because if the rights on the listing site as shown are deciduous, what Zillow does is it takes them down and then it looks for evergreen rights for the same property. That's what the testimony shows. And then it would make the choice to restore those evergreen rights, those images that may have been from a prior or even a simultaneous listing to the site. It was on notice beginning in 2014 that it's continued display of those images violated VHT's rights. But in January of 2015, and I think the sequence of this got a little bit messed up and we'll talk about it in willfulness as well. In January of 2015, VHT gives Zillow its license. It's form license and says see how it expires. In contrary to what Zillow says, the jury was entitled to find that after that, Zillow basically did nothing. It audits show that Zillow continued to leave up evergreen, pardon me, deciduous images as if they were evergreen. Then traced to VHT's rights. No, because of course this was resolved on summary judgment. Right. And so those didn't get to trial. Right. And so there wasn't testimony as to how many if any were traceable to reach the. Exactly. The point is that a jury could have found, could have found that Zillow made the choice as to what was going to continue on the listing site. And so they are responsible in the sense of being direct infringers, not just secondary. Let's talk a bit about willfulness. Start with this. The jury was properly instructed on willfulness. Nobody denies that. The question is whether or not evidence to support. Exactly. And so it was a classic state of mind issue. So something that we particularly deferred to the jury on. Now let's go down the evidence. The jury knew that Zillow had gotten repeated notices from VHT regarding infringement. The first one, which is what Mr. Cross we talked about within July of 2014. But those notices continued repeatedly in late 2014, 2015, throughout 2015. And after the suit was filed, they continued, right? Now when you say the first one is that the July 10 letter? The July 10 letter, exactly. And then there's dialogue that continues to October. It kind of stops for a couple of months. And then in January 2015, VHT sends the license and says here's our forum license. Mr. Crossby acts as though at that point Zillow or pardon me VHT dropped the ball. But I want to read to you from ER923, which is the email that went to VHT. Requesting the license. And it said, will you be able to provide us with executed versions of these agreements with each photographer and brokerage? And the implication that Zillow tries to draw on their brief is that, aha, we ask for executed licenses of every one. Here's the next sentence in that email. We do not need these today. Mr. Baldough, my client says, yes, absolutely

. Start with this. The jury was properly instructed on willfulness. Nobody denies that. The question is whether or not evidence to support. Exactly. And so it was a classic state of mind issue. So something that we particularly deferred to the jury on. Now let's go down the evidence. The jury knew that Zillow had gotten repeated notices from VHT regarding infringement. The first one, which is what Mr. Cross we talked about within July of 2014. But those notices continued repeatedly in late 2014, 2015, throughout 2015. And after the suit was filed, they continued, right? Now when you say the first one is that the July 10 letter? The July 10 letter, exactly. And then there's dialogue that continues to October. It kind of stops for a couple of months. And then in January 2015, VHT sends the license and says here's our forum license. Mr. Crossby acts as though at that point Zillow or pardon me VHT dropped the ball. But I want to read to you from ER923, which is the email that went to VHT. Requesting the license. And it said, will you be able to provide us with executed versions of these agreements with each photographer and brokerage? And the implication that Zillow tries to draw on their brief is that, aha, we ask for executed licenses of every one. Here's the next sentence in that email. We do not need these today. Mr. Baldough, my client says, yes, absolutely. There was never follow up after that asking for executed licenses. We began providing lists of infringing images by URL, specifically identified by URL in November of 2015. The jury had the spreadsheet that showed the URL number, the showed when they got notice of each one. By January of 2016, they had notice of over 15,000 infringing images specifically. The jury heard that they did nothing. And at what point is suit file? Suit is filed in 2015. I can't remember the date. But not soon after this exchange of, please send us the executed licenses. They never do say, please send us the executed license. They said, can you provide them? And we said, yes. Well, you know, I mean, but you're on it. They said, we don't, here she said, we don't need them today. We don't need these today, but as I'm sure you can understand, we will need to see confirmation of these in the future. All they had to do was ask. All they had to do was. It's a question of you don't interpret that as asking. No. And when Mr. Baldo responded, yes, absolutely. All she had to say was, well, then can we see him? But that email is never sent. And I think you're on it again. We're getting into the problems of the jury. They could make the argument to the jury. They don't know. That's not willful blindness

. There was never follow up after that asking for executed licenses. We began providing lists of infringing images by URL, specifically identified by URL in November of 2015. The jury had the spreadsheet that showed the URL number, the showed when they got notice of each one. By January of 2016, they had notice of over 15,000 infringing images specifically. The jury heard that they did nothing. And at what point is suit file? Suit is filed in 2015. I can't remember the date. But not soon after this exchange of, please send us the executed licenses. They never do say, please send us the executed license. They said, can you provide them? And we said, yes. Well, you know, I mean, but you're on it. They said, we don't, here she said, we don't need them today. We don't need these today, but as I'm sure you can understand, we will need to see confirmation of these in the future. All they had to do was ask. All they had to do was. It's a question of you don't interpret that as asking. No. And when Mr. Baldo responded, yes, absolutely. All she had to say was, well, then can we see him? But that email is never sent. And I think you're on it again. We're getting into the problems of the jury. They could make the argument to the jury. They don't know. That's not willful blindness. Because look, we were responsive, but they heard a wealth of evidence, which I can't cover in these minutes, because it was eight days of testimony. And they're entitled to look those Zillow people in the eye, listen to what they say, and look at the documents, and make a conclusion as to whether they were willful when they didn't take down. Again, remember the jury never heard anything as to whether they ever took an image down. Could they find that as well? The judge robot then took out 600 and some images, which weren't displayed. So the jury had 3,000, so and then it was reduced 2700. And that is not something that you've cross appealed. Oh, yes, absolutely. But that's 600 images you've cross appealed. That's 673 is embedded in the 1692 that I was just talking about. Okay. Those are the images that were showed to the display. Because the 673, the significance of that number is that of the 1692 or 94, I never get that number right, those were the ones that were eligible for statutory damages, the 673. And so it's a subset of the 1672. All right. So I see I've gone over. I apologize. If the Court has any questions, I'd be delighted to answer. I think not. Thank you. Thank you, Your Honour. Thank you. I'm going to put five minutes on the clock. We'll sort of add their time to his remaining time. So in 20 minutes, 22 minutes, we have not heard an identification of a single act that Zillow took that was specific to any VHT photo that has that issue. So I want to go talk specifically about these listing pages because there was, I think, some confusion about what might be relevant here or not

. Because look, we were responsive, but they heard a wealth of evidence, which I can't cover in these minutes, because it was eight days of testimony. And they're entitled to look those Zillow people in the eye, listen to what they say, and look at the documents, and make a conclusion as to whether they were willful when they didn't take down. Again, remember the jury never heard anything as to whether they ever took an image down. Could they find that as well? The judge robot then took out 600 and some images, which weren't displayed. So the jury had 3,000, so and then it was reduced 2700. And that is not something that you've cross appealed. Oh, yes, absolutely. But that's 600 images you've cross appealed. That's 673 is embedded in the 1692 that I was just talking about. Okay. Those are the images that were showed to the display. Because the 673, the significance of that number is that of the 1692 or 94, I never get that number right, those were the ones that were eligible for statutory damages, the 673. And so it's a subset of the 1672. All right. So I see I've gone over. I apologize. If the Court has any questions, I'd be delighted to answer. I think not. Thank you. Thank you, Your Honour. Thank you. I'm going to put five minutes on the clock. We'll sort of add their time to his remaining time. So in 20 minutes, 22 minutes, we have not heard an identification of a single act that Zillow took that was specific to any VHT photo that has that issue. So I want to go talk specifically about these listing pages because there was, I think, some confusion about what might be relevant here or not. So there was the rules by which Zillow kept listings up or not, depended on what the providers had specified for those images. But they were applied uniformly to all of the images that any provider provided. And to the extent that it's even arguable, and it's not, that the processing had some sort of nefarious purpose, that's not an issue because there was no secondary liability claim brought with respect to the home images, to the listing images. The only question is the volitional conduct question. And as this Court has said, it doesn't depend on intent. Has nothing to do with intent. It's just causation. Who is the person who took an act that's specific to this work that caused it to be infringed? And any further liability beyond that person must be established through secondary liability. That's the sorting mechanism for which volitional conduct exists. So similarly, with respect to the dig sites, the alleged, believe, volitional conduct was putting a button on every image, those were the words. I wrote them down as they came out. Again, this is this central conceit that VHT's images are representative of what's on Zillow's website. Millions of images on Zillow's website have never been subject to any claim of an adverse rights holder. And there's no reason to doubt that the rights that Zillow's providers guaranteed those images are. In fact, the images that Zillow has, in fact, all the evidence suggests that those are valid, right? So otherwise, why are there no complaints? Well, with respect to the willfulness, probably different ways you can read the chronology, but the way your colleague reads it is, you sort of ask, but then you said, never mind, and then the suit gets filed. And so it was then proceeding without the concrete evidence of the license arrangements. So two things. First of all, the words again I wrote them down on my mouth was, Zillow basically did nothing. Under Lutavart's basically doing nothing, quote unquote, indifference to a claim of carbon. It is not sufficient. There willful blindness requires an affirmative act to avoid learning something. Second. Well, affirmative act is somewhat ambiguous, but it's you asked for something, and then according to his version of the evidence, you said, no, actually I don't need it. That evidence that you decided you didn't need actually would have told you something that would have been adverse to your client. That is not what the evidence shows

. So there was the rules by which Zillow kept listings up or not, depended on what the providers had specified for those images. But they were applied uniformly to all of the images that any provider provided. And to the extent that it's even arguable, and it's not, that the processing had some sort of nefarious purpose, that's not an issue because there was no secondary liability claim brought with respect to the home images, to the listing images. The only question is the volitional conduct question. And as this Court has said, it doesn't depend on intent. Has nothing to do with intent. It's just causation. Who is the person who took an act that's specific to this work that caused it to be infringed? And any further liability beyond that person must be established through secondary liability. That's the sorting mechanism for which volitional conduct exists. So similarly, with respect to the dig sites, the alleged, believe, volitional conduct was putting a button on every image, those were the words. I wrote them down as they came out. Again, this is this central conceit that VHT's images are representative of what's on Zillow's website. Millions of images on Zillow's website have never been subject to any claim of an adverse rights holder. And there's no reason to doubt that the rights that Zillow's providers guaranteed those images are. In fact, the images that Zillow has, in fact, all the evidence suggests that those are valid, right? So otherwise, why are there no complaints? Well, with respect to the willfulness, probably different ways you can read the chronology, but the way your colleague reads it is, you sort of ask, but then you said, never mind, and then the suit gets filed. And so it was then proceeding without the concrete evidence of the license arrangements. So two things. First of all, the words again I wrote them down on my mouth was, Zillow basically did nothing. Under Lutavart's basically doing nothing, quote unquote, indifference to a claim of carbon. It is not sufficient. There willful blindness requires an affirmative act to avoid learning something. Second. Well, affirmative act is somewhat ambiguous, but it's you asked for something, and then according to his version of the evidence, you said, no, actually I don't need it. That evidence that you decided you didn't need actually would have told you something that would have been adverse to your client. That is not what the evidence shows. You are 920. Talk to me with the evidence. You are 923 is an email chain. The second to last email is from Michelle Winn from Zillow. She asks for the agreements with photographers and brokerages. She says, I don't need these today, but I'm sure you understand we'll need to see confirmation of these in the future. And then Brian Baldow, the CEO of VHT responds, Hi, Michelle. Yes, absolutely. Thanks, Brian. That's the final communication. We asked for them. We said, don't need them tomorrow, but we need them in the future to resolve this, and he responds, and this is the last word in that chain. Yes, absolutely. I will give these to you, and he never did. We never heard from Zillow from the age. And then how long after that was the lawsuit? So this was January 2015, and I don't have the exact filing date. But it was, I think it was a year, maybe. I think it was a year before they filed suit. I'm sorry, it was January 2016 that they filed suit. And when they did file suit, the complaint had on it a very short list of images with URLs for some... This was the first time we actually had locators that were on Zillow's site. They're not actually the locators that Zillow needs to process the images and take them down. Those only came after discovery in a very complicated process, which resulted into the final thing, if you're on the stipulation

. You are 920. Talk to me with the evidence. You are 923 is an email chain. The second to last email is from Michelle Winn from Zillow. She asks for the agreements with photographers and brokerages. She says, I don't need these today, but I'm sure you understand we'll need to see confirmation of these in the future. And then Brian Baldow, the CEO of VHT responds, Hi, Michelle. Yes, absolutely. Thanks, Brian. That's the final communication. We asked for them. We said, don't need them tomorrow, but we need them in the future to resolve this, and he responds, and this is the last word in that chain. Yes, absolutely. I will give these to you, and he never did. We never heard from Zillow from the age. And then how long after that was the lawsuit? So this was January 2015, and I don't have the exact filing date. But it was, I think it was a year, maybe. I think it was a year before they filed suit. I'm sorry, it was January 2016 that they filed suit. And when they did file suit, the complaint had on it a very short list of images with URLs for some... This was the first time we actually had locators that were on Zillow's site. They're not actually the locators that Zillow needs to process the images and take them down. Those only came after discovery in a very complicated process, which resulted into the final thing, if you're on the stipulation. That stipulation, that was a deal. It relieved VHT of the burden of proof, to prove that certain images had in fact been displayed. And the generation of the yeses, of the wise in that column, and it said displayed, was a very complicated process. And proving up, you know, why, and proving the fact that these images were displayed, you know, would have been a difficult thing for VHT to do. So they made a deal. We stipulated to those images having been displayed. And in exchange, Zillow got a stipulation that other images had not been displayed. The column said Y and N. In fact, an earlier version of that spreadsheet came back from VHT with Y and U. And Zillow insisted on Y and N before agreeing to that stipulation. But the stipulation is interpreted in this Court like a contract. That's, it is, and so the stipulation, when it is clear on its face, it is not to be contradicted with subsequent testimony by witnesses who were not parties to bargaining, to agreeing to that stipulation. Do we attach any importance to the fact that the testimony came in without objection? No, not at all, Your Honor. So the testimony came in, and there is no need to object to tell a testimony that's irrelevant. But at the time that we went to oral argument, in fact, Zillow did object. Zillow said, you know, we're afraid they're going to go somewhere. This is at the SER 167 through 169. Zillow says, we're afraid they're going to invite the jury to speculate that these images that were stipulated as not being displayed were displayed. And Judge says, well, Judge Robard says, I'm going to allow the argument if they want to make it. I assume that you're going to respond to it. I don't expect to hear him rebuttal, and you're free to rip it apart if you think you can rip it apart. There's a jury instruction. And then, and then Ms. Paul, counsel for VHT and Jax, and says, that's not what we're going to introduce this for. I just want to respond briefly so the owner understands the context

. This goes to our making available argument. So she disclaimed that they are going to try and use this to contradict the stipulation at the time that Zillow objected to them doing just that, going into closing argument. Thank you, Your Honor. I appreciate it. Thank you. Thank both counsel for a very interesting and complicated case, and for your briefing and arguments. The case of VHT versus Zillow is submitted