The real estate industry generates more than its share of copyright litigation. (It's remarkable, really.) Last week, I wrote about a home builder in Missouri who sued a couple of real estate agents for copyright infringement after they posted online, as part of real estate listings, floorplans of homes he had built. 

Today, I write about a case brought by a photographer who makes his living licensing photos of houses to real estate brokers to illustrate listings. Brokers are members of multiple listing services ("MLS") - essentially, databases established by cooperating brokers to enable them to list their properties and see other properties for sale. The defendant operates, a website that aggregates and displays MLS real-estate listings using an IDX (Internet Data Exchange) feed. Brokers who subscribe to an MLS can upload information about homes for sale (including photos), and those listings are then uploaded automatically to through the IDX feed. The complaint alleges that, generally, the terms and conditions of the licenses between an MLS and websites like do not permit the display of listing information that has expired, been withdrawn, or been sold. 

According to the complaint, in 2019, the plaintiff discovered that the defendant was displaying 1,541 of his photographs on after the licenses he had granted to the brokers had expired, and despite the fact that the properties were no longer listed for sale. He sued for copyright infringement in the Central District of California, and the defendant moved to dismiss the complaint for failure to state a claim under Rule 12(b)(6).

The defendant argued that the complaint did not allege facts to support that it - as opposed to others, such as the MLS or brokers that cause the listings to be made available on - had engaged in sufficient volitional conduct to be directly liable for copyright infringement. Relying on VHT, Inc. v. Zillow Grp., Inc.918 F.3d 723 (9th Cir. 2019), cert. denied, 140 S. Ct. 122 (2019), the court agreed with the defendant, holding that plaintiff's "allegations fall short of volitional conduct." In Zillow, the Ninth Circuit held that routine website activities - such as automatic copying, storage, and transmission of copyrighted materials, "when instigated by others" - were too "passive" and typically would not be sufficient to hold an operator of a website liable for direct copyright infringement. By contrast, where the website operator "exercised control (other than by general operation of its website); selected any material for upload, download, transmission, or storage; or instigated any copying, storage, or distribution’ of its photos," the Ninth Circuit held that the nexus between the website operator's conduct and the infringement is stronger, making it more likely that the operator could be found liable as a direct infringer.

Here, the plaintiff alleged that, in order to display the photos on, the defendant “refresh[ed] all MLS downloads and IDX displays automatically fed by those downloads." The district court found that this constituted nothing more than "the general operation of" the defendant's website which, under Zillow, was generally insufficient to constitute volitional conduct. The plaintiff also alleged that the defendant had continued to display the photos after the listings had expired. According to the district court, "passive participation such as 'displaying' the Photographs, without more, does not amount to volitional conduct."

This is almost certainly not the end of the matter, since the court granted the plaintiff leave to amend so he can allege volitional conduct by the defendant "in its subsequent display of the Photographs." 

Gutenberg v. Move, Inc., No. 2:21-cv-02382-ODW (AFMx), 2021 WL 3710014 (C.D. Cal. Aug. 20, 2021).