No. 21-1217
`_______________________________________________
`
`IN THE
`
`Supreme Court of the United States
`_______________________________________________
`
`COLUMBIA HOUSE OF BROKERS REALTY, INC., et al.,
`
`Petitioners,
`
`v.
`
`DESIGNWORKS HOMES, INC. & CHARLES LAWRENCE JAMES,
`
`Respondents.
`_____________________________________________
`
`On Petition for Writ of Certiorari
`to the United States Court of Appeals for the Eighth Circuit
`_____________________________________________
`
`BRIEF IN RESPONSE
`_____________________________________________
`
`
`
`
`
`
`
`
`Kenneth Caldwell
`CALDWELL LAW FIRM PC
`1201 NW Briarcliff Parkway
`Second Floor
`Kansas City, Missouri 64116
`(816) 535-1001
`KCaldwell@Caldwell-Law-Firm.com
`
`
`
`
`
`
`
`
`
`Andrew Grimm
`Counsel of Record
`DIGITAL JUSTICE FOUNDATION
`15287 Pepperwood Drive
`Omaha, Nebraska 68154
`(531) 210-2381
`Andrew@DigitalJusticeFoundation.org
`
`Gregory Keenan
`DIGITAL JUSTICE FOUNDATION
`81 Stewart Street
`Floral Park, New York 11001
`(516) 633-2633
`Gregory@DigitalJusticeFoundation.org
`
`
`
`
`

`

`QUESTION PRESENTED
`
`The question presented is whether 17 U.S.C. § 120(a) applies to architectural floor plans,
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`made from a structure built in a publicly visible place. In its implications, the question is whether
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`the mere construction of a building in a publicly visible place, such as from a public street, radically
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`diminishes the intellectual-property rights—and wholesale eliminates the privacy interests—in
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`architectural floor plans for tens of millions of homes and other copyrighted architectural structures
`
`within the United States.
`
`Section 120(a) applies only to four listed types of representations of a building—“pictures,
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`paintings, photographs, or other pictorial representations[.]” Because Section 120(a) list of
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`aesthetic visual representations is a statutory list, the well-worn canons of ejusdem generis and
`
`noscitur a sociis apply. Thus, the question presented is not whether an architectural floor plan is
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`a pictorial representation, understood in isolation, but whether a floor plan shares core similarities
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`to the ordinary meaning of a photograph of, a painting of, or a picture of a building—all aesthetic
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`presentations of a building usually presented as through the naked eye—and far afield from the
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`technical and graphical nature of a floor plan.
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`Likewise, the Copyright Act protects visual works through a defined category of
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`“[p]ictorial, graphic, and sculptural” works, but clarifies through statutory usage that pictorial
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`works, graphic works, and sculptural works are distinct. Thus, another way to phrase the question
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`presented is whether an architectural floor plan is pictorial (to which Section 120(a) applies) or
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`graphic (to which it doesn’t). Although the Act never expressly defines the difference, nearly a
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`hundred years of statutory enactments and case law indicate that Section 120(a)’s pictorial
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`representations means fine art, photographs, prints, art reproductions, etc. By contrast, Section
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`120(a) does not apply to graphic representations, i.e., maps, globes, charts, diagrams, models, and
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`technical drawing, including architectural plans.
`
`
`
`
`
`i
`
`

`

`CORPORATE DISCLSOURE STATEMENT
`
`Respondent Charles James is a natural person. His home-design-and-build company,
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`Respondent Designworks Homes, Inc., declares (i) that it is a corporation that has no parent
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`corporation, and (ii) that no publicly held company owns 10% or more of its stock.
`
`
`
`ii
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`

`

`CONTENTS
`
`
`
`QUESTION PRESENTED .............................................................................................................. i
`
`Page
`
`CORPORATE DISCLSOURE STATEMENT .............................................................................. ii
`
`TABLE OF AUTHORITIES .......................................................................................................... v
`
`STATEMENT OF THE CASE ....................................................................................................... 1
`
`I. LEGAL BACKGROUND ....................................................................................................... 1
`
`II. FACTUAL BACKGROUND. ................................................................................................. 4
`
`RESPONSES TO THE PETITION ................................................................................................ 7
`
`I. THE PETITION DOES NOT MEET THE STANDARDS FOR CERTIORARI
`STATED IN RULE 10(A) AND GRANTING CERTIORARI UNDER RULE 10(C)
`WOULD BE PREMATURE PRIOR TO MEANINGFUL FURTHER
`PERCOLATION THROUGH THE COURTS OF APPEALS. ................................................... 7
`
`A. Petitioners acknowledge that there is no Circuit split. ................................................ 10
`
`B. Petitioners’ own amici undermine claims of national importance. ............................. 12
`
`C. Petitioners’ impossibility theory is wholly unsupported. ........................................... 15
`
`D. Petitioners’ policy hyperbole ignores other provisions of the statute. ........................ 19
`
`II. THE EIGHTH CIRCUIT CORRECTLY HELD THAT A FLOOR PLAN IS NOT A
`PICTORIAL WORK. ........................................................................................................... 23
`
`A. Petitioners ignore the Copyright Act’s critical distinction between pictorial
`and graphic works ....................................................................................................... 25
`
`B. Petitioners ignore the effect of the doctrine of noscitur a sociis and ejusdem
`generis upon Section 120(a)’s list. .............................................................................. 27
`
`C. Petitioners ignore the longstanding treatment of floor plans as technical and
`not pictorial in nature. ................................................................................................. 28
`
`D. Petitioners repeatedly beg the question and their subset theory, their best
`argument, fails............................................................................................................. 30
`
`III.THE POLICY BALANCE DECISIVELY SUPPORTS THE EIGHTH CIRCUIT’S
`DECISION. ........................................................................................................................ 31
`
`
`
`iii
`
`

`

`interests of
`A. Petitioners’ position undermines privacy and safety
`homeowners. ............................................................................................................... 31
`
`B. Petitioners’ amici have the means and influence to go to the political
`branches to make their case and drastically overestimate the ability of
`architects to access legal remedies. ............................................................................. 32
`
`CONCLUSION ............................................................................................................................. 35
`
`
`
`
`
`
`
`
`
`iv
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`

`

`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Ardestani v. INS,
`502 U.S. 129 (1991). ............................................................................................................... 23
`
`Conn. Nat’l Bank v. Germain,
`503 U.S. 249 (1992). ............................................................................................................... 21
`
`Doe v. Gillespie,
`867 F.3d 1034 (8th Cir. 2017). ............................................................................................... 24
`
`Eldred v. Ashcroft,
`537 U.S. 186 (2003). ............................................................................................................... 19
`
`K Mart Corp. v. Cartier,
`486 U.S. 281 (1988). ............................................................................................................... 23
`
`Lagos v. United States,
`138 S. Ct. 1684 (2018). ........................................................................................................... 27
`
`McCarthy v. Bronson,
`500 U.S. 136 (1991). ............................................................................................................... 23
`
`McDonnell v. United States,
`136 S. Ct. 2355 (2016). ........................................................................................................... 27
`
`Nucor Corp. v. Tenn. Forging Steel Serv.,
`476 F.2d 386 (8th Cir. 1973). ................................................................................................. 28
`
`Park v. Skidmore, Owings & Merrill LLP,
`2019 U.S. Dist. LEXIS 171566
`(S.D.N.Y. Sept. 30, 2019). ...................................................................................................... 25
`
`Samantar v. Yousuf,
`560 U.S. 305 (2010). ............................................................................................................... 24
`
`Scholz Design, Inc. v. Sard Custom Homes, LLC,
`691 F.3d 182 (2d Cir. 2012).................................................................................................... 28
`
`Star Athletica, L.L.C. v. Varsity Brands, Inc.,
`137 S. Ct. 1002 (2017). ........................................................................................................... 19
`
`Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.,
`139 S. Ct. 361 (2018). ............................................................................................................. 23
`
`
`
`v
`
`

`

`Yates v. United States,
`574 U.S. 528 (2015). ............................................................................................................... 27
`
`Statutes
`
`17 U.S.C. § 101. .......................................................................................................... 25, 26, 27, 28
`
`17 U.S.C. § 107. ............................................................................................................................ 21
`
`17 U.S.C. § 120(a). ................................................................................................................... 3, 25
`
`17 U.S.C. § 1310. .......................................................................................................................... 30
`
`17 U.S.C. § 512(c). ......................................................................................................................... 5
`
`17 U.S.C. §§107-122. ................................................................................................................... 19
`
`28 U.S.C. § 1338(a). ....................................................................................................................... 7
`
`Other Authorities
`
`Art. I, § 8, cl. 8. ............................................................................................................................... 1
`
`H.R. 3990, 101st Cong. (1990). ...................................................................................................... 1
`
`H.R. 5498, 101st Cong. (1990) (enacted text). ............................................................................... 1
`
`H.R. Rep. 101-735. ......................................................................................................................... 1
`
`Katz, Copyright Protection of Architectural Plans, Drawings and Designs, 19 Law & Contemp.
`Prob. 224 (1954). .................................................................................................................... 28
`
`Rules
`
`Sup. Ct. R. 10. ................................................................................................................................. 7
`
`Treatises
`
`Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts (2012). .. 11, 24
`
`
`
`
`
`
`
`vi
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`

`

`
`
`_____________________________________________
`
`BRIEF IN RESPONSE
`_____________________________________________
`
`
`Respondents Charles James and Designworks Homes, Inc, respond to the Petition in this
`
`case as follows:
`
`STATEMENT OF THE CASE
`
`I. LEGAL BACKGROUND
`
`1.
`
`In the late 1980s, Congress wanted to clarify that buildings were eligible for
`
`copyright protection, just as floor plans had been for many decades. Protecting architects and
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`constructed architectural art, i.e., buildings, through intellectual property-rights would further the
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`Constitutional purposes underlying the Copyright Clause. H.R. Rep. 101-735, at 12 (1990). It
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`would also make good on the treaty obligations stemming from President Reagan’s decision to
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`join the “world’s most important copyright treaty.” Id. at 8.
`
`2.
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`Initial legislative proposals included provisions to protect the “interests of the real
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`estate industry.” Id. at 11, 11 n.21. Then, Congress decided realtors didn’t need special
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`exemptions. Later bills, namely the enacted one, didn’t have any. See generally H.R. 3990, 101st
`
`Cong. (1990); H.R. 5498, 101st Cong. (1990) (enacted text). Markets and licensing for
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`copyrighted expression would work for realtors seeking to use architectural plans, just as markets
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`work for all other manner of copyrighted works.
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`3.
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`Such markets for creative products incentivize the most productive use and
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`allocation of society’s limited artistic and creative resources. They are also the legal means by
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`which artists and creators get fairly compensated for the value that they give to society, for the
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`original expressions they provide that in turn advance “the Progress of Science and useful Arts”—
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`as the Founders envisioned. Art. I, § 8, cl. 8.
`
`
`
`1
`
`

`

`4.
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`In this sense, and despite Petitioners’ hyperbolic rhetoric, the decision below is par
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`for the course. Through copyright law, Congress created private property rights, which in turn
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`generate markets for the creative works protected by those rights. As a result, copyright’s markets
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`have the byproduct of supporting a professional creative class and of productively allocating such
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`creative talent and resources both vis-à-vis other creative markets and vis-à-vis other non-creative
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`opportunities.
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`5.
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`Then, as the Constitution’s Copyright Clause foreshadows, the ultimate byproduct
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`is the advancement of the state of the arts. It’s artistic advancement that, because of the relatively
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`democratized nature of copyrighted markets, is directed by the people in the wisdom of their
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`collective market decisions. As history has shown, it’s a better system than the others tried—be
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`they royal commission, government grant, wealthy patronage, or complete neglect of the social
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`value of the arts.
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`6.
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` It’s no different here. Indeed, Petitioners and Petitioners’ amici readily
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`acknowledge that there is a lot of value, beyond the constructed home itself, to the use of floor
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`plans. In their telling, expression of home designs via floor plans is enormously valuable. They
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`just don’t want to share any of that value with the original creators who’ve generated the design.
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`Yet they give no reason for—let alone justify the fairness of—systematically excluding the
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`architects from the additional value stemming from the architect’s creative labor.
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`7.
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`Petitioners and Petitioners’ amici desire to never pay a penny to an architect for a
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`profit-generating commercial exploitation of architects’ creative works is especially unreasonable
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`because they are already paying third parties to generate floor plans off of architect-designed
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`buildings and, then, profiting handsomely from it.
`
`
`
`2
`
`

`

`8.
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`In that sense, the issue here is not whether the real-estate industry pays for the use
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`of floor plans, but rather who they pay, i.e., whether realtors and associated technology companies
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`can systematically exclude architects from the added value and profit generated by the commercial
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`exploitation of the architects’ plans when placed online.
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`* * * * *
`
`9.
`
`The instant question of statutory interpretation is whether architectural floor plans
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`are encompassed within the meaning of the statutory list set forth in Section 120(a): “pictures,
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`paintings, photographs, or other pictorial representations[.]” 17 U.S.C. § 120(a). Floor plans
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`aren’t a painting of a building. And, floor plans aren’t a photograph of a building. So, the question
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`boils down to two of those categories: “pictures” and “other pictorial representations” as listed in
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`Section 120(a).
`
`10.
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`Three interpretative considerations are highly pertinent to this question. First, the
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`well-established canons of statutory interpretation that pertain to the statutory construction of lists
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`and the catch-all provisions provided in them, noscitur a sociis and ejusdem generis, are highly
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`relevant here. Second, the Copyright Act has a highly pertinent distinction between different types
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`of visual expression—pictorial works, graphic works, and sculptural works. The pictorial-graphic
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`distinction employed by the statute is highly pertinent to avoiding the problems of statutory
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`construction done in a vacuum—and critically, floor plans are graphic and not pictorial under this
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`distinction. Third, nearly a century of authorities—statutory usage, statutory enactments, statutory
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`context, and judicial decisions, etc.—give credence to the longstanding views that floor plans are
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`technical, not pictorial, in nature.
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`11.
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`Each consideration taken separately, and more so taken together, provides strong
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`justification for the conclusion that floor plans are not encompassed within Section 120(a)’s list.
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`
`
`3
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`

`

`II. FACTUAL BACKGROUND.
`
`12.
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`Respondent Charles James has devoted his life to the creation of unique and
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`innovative residential home designs, most recently under the auspices of his home design-and-
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`build company, Respondent Designworks Homes, Inc. In the late 1990s, Mr. James created an
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`innovative and award-winning home design that featured a prominent triangular-atrium feature
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`quite unlike any feature he had ever witnessed in a home design beforehand. Seen from the
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`moment one enters the house, his triangular-atrium feature captures a viewer’s attention from the
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`get-go. Not many homes have any triangular design—let alone a design centered around a
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`triangular-atrium feature.
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`13.
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`This triangular-atrium feature became the centerpiece of many houses that Mr.
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`James built and sold (for above-market prices) in and around Columbia, Missouri. In 2004, Mr.
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`James applied for copyright registration and the U.S. Copyright Office issued a registration
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`certificate that included his triangular-atrium design. He considers this award-winning design to
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`be his life’s greatest accomplishment.
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`14.
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`Around 2017, he came across houses designed and built by prominent builders in
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`and around Kansas City, Missouri, that used a highly similar triangular-atrium feature—a feature
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`that he had never seen in any other homes except the ones he himself had designed and built. (This
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`discovery led to litigation that it not at issue in this case. Rather, that litigation is the subject of a
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`separate petition pending before this Court as No. 21-8001.)
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`15. Mr. James’ discovery left him concerned about the potential for infringement of
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`award-winning designs and plans. He was especially troubled to find, upon Internet research, that
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`his plans—what he considers to be his life’s biggest achievement—were being continually
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`displayed online at Petitioners’ websites, globally, without artistic attribution to him, and without
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`any restriction, such as a password or otherwise, in a manner that would permit theft of his plans.
`
`
`
`4
`
`

`

`16. Mr. James and his company sued to try to get their award-winning architectural
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`designs off the Internet. A few factual aspects of the case are worth emphasizing:
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`17.
`
`As Petitioners themselves admit, the floor plans at issue were left online for years
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`after any prospect of a home sale was in play.
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`18.
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`Petitioners invoke the mantle of the homeowner to suggest that this case is between
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`homeowners’ rights and architects’ rights. Not so. Although at the time of sale, the realtors here
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`may have had authorization to post the floor plan, there is no indication that the homeowners
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`wanted floor plans of their dwellings posted online for the world to see permanently. Indeed,
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`Petitioners take positions that would make it nearly impossible for a homeowner interested in
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`privacy against online stalking to get it taken off the Internet. By contrast, copyright law provides
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`a tailor-made way to get floor plans off the Internet, 17 U.S.C. § 512(c), and provide incentives
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`against unauthorized posting in the first place.
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`19.
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`Likewise, Petitioners give no reasons that they could not have just as successfully
`
`used a floor plan by limiting the distribution to those who demonstrated an interest in purchasing
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`the home, such as a password protection for the floor plan or email distribution of it upon request
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`by interested purchasers.
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`20.
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`Importantly, some of the realtors here paid a third party to create the floor plan and
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`some of them internalized the time and labor cost of doing so. There is no indication they did not
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`know who the architect was or how to contact him to obtain a floor plan and authorization to show
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`it to potential buyers (or to facilitate a transfer of the rights in the floor plan to the home buyers).
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`Likewise, the architect’s provision of a floor plan for use in the sale would have avoided the social
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`costs and waste of reinventing the wheel.
`
`
`
`5
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`

`

`21.
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`Finally, NAR financed defense of this case as policy-driven impact litigation to use
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`the courts in a failed attempt to achieve policy goals that were unattainable from Congress.
`
`
`
`6
`
`

`

`RESPONSES TO THE PETITION
`
`I. THE PETITION DOES NOT MEET THE STANDARDS FOR CERTIORARI STATED
`IN RULE 10(a) AND GRANTING CERTIORARI UNDER RULE 10(c) WOULD BE
`PREMATURE PRIOR TO MEANINGFUL FURTHER PERCOLATION THROUGH THE
`COURTS OF APPEALS.
`
`22.
`
`This Court’s Rule 10 lays out the general character of the “considerations governing
`
`review on writ of certiorari[.]” Sup. Ct. R. 10. Rule 10 makes clear that “a writ of certiorari will
`
`be granted only for compelling reasons.” Id.1 Here, the Petition plainly does not meet Rule 10(a)’s
`
`or Rule 10(b)’s standards. Given the importance of the statutory question, Rule 10(c) is a pathway
`
`to granting certiorari should this Court wish to consider the question presented at this time.
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`However, given the relative dearth of appellate authorities addressing the question presented (just
`
`what’s been decided below), Respondents respectfully submit that denying the Petition and
`
`permitting meaningful percolation is preferable.
`
`23.
`
`Rule 10(a) sets forth two potential reasons for granting certiorari to review a federal
`
`appellate decision.2 The first reason is a Circuit split, i.e., if one Court of Appeals produces a
`
`“decision in conflict with the decision of another United States court of appeals on the same
`
`important matter[.]”3 Sup. Ct. R. 10(a). The second reason relates to supervisory power, i.e.,
`
`where a Court of Appeals “has so far departed from the accepted and usual course of judicial
`
`proceedings [...] as to call for an exercise of this Court’s supervisory power.” Id. Neither of these
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`reasons under Rule 10(a) is remotely present here.
`
`
`1 All emphasis supplied unless otherwise indicated.
`2 Supreme Court Rule 10(b) is plainly inapplicable because it applies by its plain terms to review of
`judgments of state courts of last resort. This instant Petition comes to this Court from a judgment of the U.S. Court
`of Appeals for the Eighth Circuit.
`3 Likewise, Rule 10(a) also applies in general to splits between a U.S. Court of Appeals and a state court of
`last resort. Yet, because copyright claims are nearly universally decided in federal courts, 28 U.S.C. § 1338(a), this
`is not a realistic scenario.
`
`
`
`7
`
`

`

`24.
`
`First, there is no Circuit split. See Section I.A, infra. Petitioners concede as much.
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`Pet. 27 (“Petitioners acknowledge that there is no circuit conflict.”). After all, the Eighth Circuit,
`
`in the opinion below, was the first and only appellate decision to address the discrete question of
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`statutory interpretation (involving a remote and rarely litigated section of the Copyright Act) at
`
`issue here.
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`25.
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`Second, there was no departure from any “accepted and usual course of judicial
`
`proceedings” in the Eighth Circuit’s decision below. Sup. Ct. R. 10(a). Rather, the Eighth Circuit
`
`engaged in straightforward statutory interpretation when reviewing and reversing the District
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`Court’s cursory and perfunctory interpretation of Section 120(a). Clearly, Petitioners and their
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`amici strongly disagree with the Eighth Circuit’s interpretation of Section 120(a). Pet. 8 (“the
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`decision below is indefensible”); Move, Inc. Pet. Amicus Br. 3 (“positively bizarre”). However,
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`the Eighth Circuit’s interpretation that architectural floor plans do not qualify as “pictorial
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`representations” within the meaning of Section 120(a) is entirely justifiable, far from bizarre, and
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`readily supported by:
`
`●
`
`The whole-text cannon, construing Section 120(a) in light of the Copyright Act’s
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`overall structure and the usage of terms of art throughout the Act;
`
`●
`
`Especially applicable canons of statutory construction including ejusdem generis
`
`and noscitur a sociis;
`
`●
`
`The Copyright Act’s undeniable distinction between “pictorial” works and
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`“graphic” works;
`
`●
`
`Copyright law’s longstanding tradition of treating floor plans as technical works
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`rather than pictorial works; and
`
`
`
`8
`
`

`

`●
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`Section 120(a)’s conspicuous absence of any of the statutory terms that have
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`historically been used to refer to floor plans in copyright statutes.
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`In light of the foregoing bullet points, Respondents strongly disagree with Petitioner’s overstated
`
`and unsupported position that the Eighth Circuit rendered an “indefensible” interpretation of
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`Section 120(a). To the contrary, the Eighth Circuit’s decision finds ample support in well-worn
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`canons of statutory interpretation, multiple amendments to the Copyright Act, and the longstanding
`
`judicial characterization of floor plans. Plainly, this Court’s supervisory powers are not invoked
`
`by such a well-founded decision.
`
`26.
`
`Admittedly, one clause of Rule 10(c) does set forth one possible ground upon
`
`which to grant the Petition. Rule 10(c) applies where the court of appeal’s opinion “decided an
`
`important question of federal law that has not been, but should be, settled by this Court[.]” Sup.
`
`Ct. R. 10(c). Yet, given the lack of appellate authorities analyzing the question presented, it is
`
`arguably premature to decide this issue prior to percolation through more than one Courts of
`
`Appeals.4
`
`27.
`
`Finally, as explained in more detail below, Petitioners’ hyperbolic policy gripes are
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`vastly overstated and simply do not provide a basis for challenging the Eighth Circuit’s
`
`interpretation of Section 120(a). As an initial matter, the Eighth Circuit properly advised
`
`Petitioners and their amici to direct their policy concerns to Congress. Pet. App. 14a. (correctly
`
`instructing Petitioners and their amici that they “should direct its argument to the political
`
`branches.”).
`
`28.
`
`But beyond that, Petitioner’s policy arguments fall flat on multiple notes.
`
`
`4 Indeed, if Petitioners and their amici were correct that the Eighth Circuit’s interpretation of Section 120(a)
`is “indefensible” and “bizarre”, then a Circuit split should arise upon the very next case on the issue to reach the
`Courts of Appeals, at which time this Court will be better positioned to resolve this admittedly important question of
`federal law.
`
`
`
`9
`
`

`

`29.
`
`First, Petitioners’ own amici readily demonstrate that the implications of the Eighth
`
`Circuit’s holding below would be marginal. See Section I.B, infra. Second, Petitioners’ ipse dixit
`
`assertion that it would be impossible to procure licenses from the architectural rightsholder is
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`purely speculative, wholly unsupported, and should not be believed. See Section I.C, infra.
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`Finally, Petitioner’s self-serving policy prognostications simply ignore various provisions of the
`
`Copyright Act, including other portions of Section 120(a) itself, and how they affect various
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`stakeholders here. See Section I.D, infra.
`
`30.
`
`Despite Petitioners’ impassioned rhetoric and policy hyperbole, the Petition fails to
`
`present any compelling reasons for granting certiorari rather than to permit the question presented
`
`to percolate up through the Courts of Appeals.
`
`* * * * *
`
`31.
`
`In sum, none of Rule 10(a)’s considerations favor granting certiorari. Rule 10(c)
`
`may provide a basis for granting certiorari, should this Court wish to exercise its discretion and
`
`address the question presented. Nevertheless, it is submitted that the more prudent approach might
`
`be to simply permit the issue to percolate up through the Courts of Appeals and to address the
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`question if and when the courts of appeals produce a circuit split on how to interpret Section 120(a).
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`And Petitioners’ hyperbolic policy gripes provide no basis for prematurely interfering with that
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`percolation.
`
`A.
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`Petitioners acknowledge that there is no Circuit split.
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`32.
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`One consideration that should weigh against granting the Petition is that there is no
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`split of appellate authority on the issue at hand, as the Petition readily acknowledges. Pet. 27 (“no
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`circuit conflict”). Yet Petitioner’s concession regarding the lack of a Circuit split does not fully
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`capture just how unsupported Petitioner’s position is.
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`10
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`33.
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`Not only has no Court of Appeals ever sided with Petitioners on its preferred
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`interpretation of Section 120(a), not a single appellate judge has ever supported Petitioner’s
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`preferred reading of Section 120(a). Below, the Eighth Circuit Panel issued a unanimous opinion.
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`And, Petitioners failed to garner a single vote from any Eighth Circuit judge when seeking a
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`petition for rehearing. Thus, despite repeated attempts, Petitioners have failed to get any support
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`from appellate judges on their preferred reading (and/or their asserted policy magnitude) of Section
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`120(a) and floor plans.
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`34.
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`Admittedly, there are a couple of district courts that have adopted Petitioners’
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`interpretation of Section 120(a), holding that the term “pictorial representations” includes floor
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`plans. But those district court decisions result from cursory analysis of the statutory question.
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`Moreover, those district court decisions have a common, but fundamental, flaw in their textual
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`analysis by violating the whole-text canon:
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`Perhaps no interpretive fault is more common than the failure to follow the whole-
`text canon, which calls on the judicial interpreter to consider the entire text, in
`view of its structure and of the physical and logical relation of its many parts.
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`Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 167 (2012).
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`* * * * *
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`35.
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`There is no Circuit split. In fact, no Court of Appeals and no Circuit judge has ever
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`endorsed Petitioners’ preferred reading of Section 120(a). And below, the Eighth Circuit saw
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`Petitioners’ arguments for what they were: policy preferences. As such, they rightly rejected
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`Petitioners’ self-serving attempts to transform Section 120(a) into a blank check for realtors to do
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`whatever they wanted with architectural floor plans. Given the lack of a Circuit split and given
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`the lack of any appellate support whatsoever for Petitioner’s preferred reading of Section 120(a),
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`the Petition should be denied.
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`11
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`B.
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`Petitioners’ own amici undermine claims of national importance.
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`36.
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`The Petition relies heavily on banal observations and generic statements about the
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`real estate industry to insinuate some broad sweeping consequences attributable to the Eighth
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`Circuit’s narrow holding on a discrete question of statutory interpretation. For example, the
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`Petition emphasizes that “[m]illions of existing homes are sold every month.” Pet. 22 (citing NAR
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`CA8 Amicus Br. 8) The Petition also stresses that “there are more than 100,000 real estate
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`brokerage firms in the United States, and more than 3 million real estate agents.” Pet. 23 n.10.
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`The implication is that if the Eighth Circuit’s interpretation stands, the national housing market
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`will somehow suffer irreparable damage.
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`37.
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`But a careful review of the briefs by Petitioners’ own amici quickly puts things into
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`proper perspective and reveals that the actual implications of the Eighth Circuit