Case 1:15-cv-00440-RP Document 20 Filed 07/08/15 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`Civil Action No. 1:15-cv-440-RP
`
`§§
`
`§§
`
`§§
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`COSTAR REALTY INFORMATION, INC.,
`
`Plaintiff,
`
`v.
`
`§
`REALMASSIVE, INC., JOSHUA MCCLURE, §
`CRAIG HANCOCK, JASON VERTREES,
`§
`and CRAIG NEGOESCU,
`
`§§
`
`§
`
`Defendants.
`
`DEFENDANTS’ FIRST AMENDED ANSWER
`
`TO THE HONORABLE ROBERT PITMAN:
`
`Defendants RealMassive, Inc., Joshua McClure, Craig Hancock, Jason Vertrees and
`
`Craig Negoescu (collectively, “Defendants”), subject to their Rule 12(f) Motion to Strike, hereby
`
`file this First Amended Answer to the Plaintiff’s Complaint, and would respectfully show:
`
`I.
`
`Answer to Allegations in Complaint.
`
`1.
`
`2.
`
`3.
`
`Defendants admit the allegations in Paragraph 1 of the Complaint.
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`Defendants deny the allegations in Paragraph 2 of the Complaint.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 3 of the Complaint, and so deny them.
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`4.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 4 of the Complaint, and so deny them.
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`5.
`
`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 5 of the Complaint, and so deny them.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`Civil Action No. 1:15-cv-440-RP
`
`§§
`
`§§
`
`§§
`
`COSTAR REALTY INFORMATION, INC.,
`
`Plaintiff,
`
`v.
`
`§
`REALMASSIVE, INC., JOSHUA MCCLURE, §
`CRAIG HANCOCK, JASON VERTREES,
`§
`and CRAIG NEGOESCU,
`
`§§
`
`§
`
`Defendants.
`
`DEFENDANTS’ FIRST AMENDED ANSWER
`
`TO THE HONORABLE ROBERT PITMAN:
`
`Defendants RealMassive, Inc., Joshua McClure, Craig Hancock, Jason Vertrees and
`
`Craig Negoescu (collectively, “Defendants”), subject to their Rule 12(f) Motion to Strike, hereby
`
`file this First Amended Answer to the Plaintiff’s Complaint, and would respectfully show:
`
`I.
`
`Answer to Allegations in Complaint.
`
`1.
`
`2.
`
`3.
`
`Defendants admit the allegations in Paragraph 1 of the Complaint.
`
`Defendants deny the allegations in Paragraph 2 of the Complaint.
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`Defendants lack sufficient knowledge or information to form a belief about the
`
`truth of the allegations in Paragraph 3 of the Complaint, and so deny them.
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`4.
`
`Defendants lack sufficient knowledge or information to form a belief about the
`
`truth of the allegations in Paragraph 4 of the Complaint, and so deny them.
`
`5.
`
`Defendants lack sufficient knowledge or information to form a belief about the
`
`truth of the allegations in Paragraph 5 of the Complaint, and so deny them.
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`
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`Case 1:15-cv-00440-RP Document 20 Filed 07/08/15 Page 2 of 10
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`6.
`
`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 6 of the Complaint, and so deny them.
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`7.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 7 of the Complaint, and so deny them.
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`8.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 8 of the Complaint, and so deny them.
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`9.
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`10.
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`Defendants deny the allegations in Paragraph 9 of the Complaint.
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`Defendants admit that Defendant RealMassive, Inc., operates the website located
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`at www.realmassive.com, and deny the remaining allegations in Paragraph 10 of the Complaint.
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`11.
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`12.
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`13.
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`14.
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`15.
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`Defendants deny the allegations in Paragraph 11 of the Complaint.
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`Defendants deny the allegations in Paragraph 12 of the Complaint.
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`Defendants deny the allegations in Paragraph 13 of the Complaint.
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`Defendants deny the allegations in Paragraph 14 of the Complaint.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 15 of the Complaint, and so deny them.
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`16.
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`17.
`
`Defendants admit the allegations in Paragraph 16 of the Complaint.
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`Defendants admit the allegations in the first sentence of Paragraph 17 of the
`
`Complaint, and deny the remaining allegations.
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`18.
`
`Defendants admit the allegations in the first and second sentences of Paragraph 18
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`of the Complaint, and deny the remaining allegations.
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`19.
`
`Defendants admit the allegations in the first sentence of Paragraph 19 of the
`
`Complaint, and deny the remaining allegations.
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`Defendants’ First Amended Answer – Page 2
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`
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`Case 1:15-cv-00440-RP Document 20 Filed 07/08/15 Page 3 of 10
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`20.
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`Defendants admit the allegations in the first and second sentences of Paragraph 20
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`of the Complaint, and deny the remaining allegations.
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`21.
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`The statement in Paragraph 21 of the Complaint does not require an admission or
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`denial.
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`Texas.
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`22.
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`23.
`
`24.
`
`Defendants deny the allegations in Paragraph 22 of the Complaint.
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`Defendants admit the allegations in Paragraph 23 of the Complaint.
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`Defendants admit that RealMassive, Inc., is subject to personal jurisdiction in
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`25.
`
`Defendants admit
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`that
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`the Individual Defendants are subject
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`to personal
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`jurisdiction in Texas.
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`26.
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`27.
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`Defendants admit that venue is proper in this Court.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 27 of the Complaint, and so deny them.
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`28.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 28 of the Complaint, and so deny them.
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`29.
`
`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 29 of the Complaint, and so deny them.
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`30.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 30 of the Complaint, and so deny them.
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`31.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 31 of the Complaint, and so deny them.
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`32.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 32 of the Complaint, and so deny them.
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`Defendants’ First Amended Answer – Page 3
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`
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`Case 1:15-cv-00440-RP Document 20 Filed 07/08/15 Page 4 of 10
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`33.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 33 of the Complaint, and so deny them.
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`34.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 34 of the Complaint, and so deny them.
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`35.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 35 of the Complaint, and so deny them.
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`36.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 36 of the Complaint, and so deny them.
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`37.
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`Defendants lack sufficient knowledge or information to form a belief about the
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`truth of the allegations in Paragraph 37 of the Complaint, and so deny them.
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`38.
`
`Defendants deny the allegations in the first two sentences of Paragraph 38 of the
`
`Complaint, admit
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`that Defendants McClure and Hancock were interviewed by the Austin
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`Business Journal, but deny that the characterization of their interview in Paragraph 38 is
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`accurate.
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`39.
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`40.
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`Defendants deny the allegations in Paragraph 39 of the Complaint.
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`Defendants deny the allegations in the first sentence of Paragraph 40 of the
`
`Complaint, admit that Defendant McClure gave an interview to the New York Times, that
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`Defendants Hancock and McClure gave an interview to Benzinga, that Defendant Vertrees gave
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`a talk on Austin Tech Live, but deny the characterizations of their statements in Paragraph 40 of
`
`the Complaint.
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`41.
`
`42.
`
`43.
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`Defendants deny the allegations in Paragraph 41 of the Complaint.
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`Defendants deny the allegations in Paragraph 42 of the Complaint.
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`Defendants deny the allegations in Paragraph 43 of the Complaint.
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`Defendants’ First Amended Answer – Page 4
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`
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`Case 1:15-cv-00440-RP Document 20 Filed 07/08/15 Page 5 of 10
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`44.
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`45.
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`46.
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`47.
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`48.
`
`49.
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`50.
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`51.
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`Defendants deny the allegations in Paragraph 44 of the Complaint.
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`Defendants deny the allegations in Paragraph 45 of the Complaint.
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`Defendants deny the allegations in Paragraph 46 of the Complaint.
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`Defendants deny the allegations in Paragraph 47 of the Complaint.
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`Defendants deny the allegations in Paragraph 48 of the Complaint.
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`Defendants deny the allegations in Paragraph 49 of the Complaint.
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`Defendants deny the allegations in Paragraph 50 of the Complaint.
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`Defendants admit that RealMassive, Inc., employs multiple protocols to avoid
`
`infringing third parties’ intellectual property, and deny the remaining allegations in Paragraph 51
`
`of the Complaint.
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`52.
`
`53.
`
`54.
`
`Defendants deny the allegations in Paragraph 52 of the Complaint.
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`Defendants deny the allegations in Paragraph 53 of the Complaint.
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`Defendants deny the allegations in the first sentence of Paragraph 54 of the
`
`Complaint, and lack sufficient knowledge or information to form a belief about the truth of the
`
`remaining allegations, and so deny them.
`
`55.
`
`56.
`
`Defendants deny the allegations in Paragraph 55 of the Complaint.
`
`Defendants deny the allegations in the first sentence of Paragraph 56 of the
`
`Complaint, admit that the incorporated photograph formerly was available on the RealMassive
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`website but was removed immediately upon notice of CoStar’s claim of
`
`infringement.
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`Defendants deny the remaining allegations in Paragraph 56.
`
`57.
`
`Defendants admit
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`that
`
`the photograph incorporated in Paragraph 57 of the
`
`Complaint formerly was available on the RealMassive website but was removed immediately
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`Defendants’ First Amended Answer – Page 5
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`
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`Case 1:15-cv-00440-RP Document 20 Filed 07/08/15 Page 6 of 10
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`upon notice of CoStar’s claim of infringement. Defendants deny the remaining allegations in
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`Paragraph 57.
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`58.
`
`Defendants admit that the photographs attributed to www.realmassive.com in
`
`Paragraph 58 of the Complaint formerly were available on the RealMassive website but were
`
`removed immediately upon notice of CoStar’s claim of infringement. Defendants deny the
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`remaining allegations in Paragraph 58.
`
`59.
`
`Defendants deny the allegations in the first sentence of Paragraph 59 of the
`
`Complaint, admit that the two photographs attributed to a RealMassive Tutorial in the paragraph
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`were formerly contained in an online tutorial and brochure but were removed immediately upon
`
`notice of CoStar’s claim of infringement. Defendants deny the remaining allegations in
`
`Paragraph 59.
`
`60.
`
`61.
`
`62.
`
`Defendants deny the allegations in Paragraph 60 of the complaint.
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`Defendants deny the allegations in Paragraph 61 of the complaint.
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`Defendants deny that the “open data” referenced in the quoted statement
`
`in
`
`Paragraph 62 of the Complaint refers to CoStar’s “intellectual property,” and otherwise lack
`
`sufficient information to form a belief as to the truth of the remaining allegations in Paragraph
`
`62, and thus deny them.
`
`63.
`
`64.
`
`Defendants deny the allegations in Paragraph 63 of the Complaint.
`
`Defendants deny that CoStar and its affiliates have offered similar subscription
`
`services as RealMassive, Inc., as alleged in Paragraph 64 of the Complaint, and otherwise lack
`
`sufficient information to for a belief as to the truth of the remaining allegations in Paragraph 64,
`
`and thus deny them.
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`65.
`
`Defendants deny the allegations in Paragraph 65 of the Complaint.
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`Defendants’ First Amended Answer – Page 6
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`
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`Case 1:15-cv-00440-RP Document 20 Filed 07/08/15 Page 7 of 10
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`66-80. The Plaintiff’s allegations in Paragraphs 66-80 of the Complaint are subject to the
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`Defendants’ Motion to Strike.
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`81.
`
`Defendants incorporate by reference the answering paragraphs set forth above in
`
`response to Paragraph 81 of the Complaint.
`
`82.
`
`83.
`
`84.
`
`Defendants deny the allegations in Paragraph 82 of the Complaint.
`
`Defendants deny the allegations in Paragraph 83 of the Complaint.
`
`Defendants admit the allegations in Paragraph 84 of the Complaint but only to the
`
`extent the photos mentioned in the paragraph are publicly accessible by every person with
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`internet access.
`
`85.
`
`86.
`
`Defendants deny the allegations in Paragraph 85 of the Complaint.
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`Defendants lack sufficient knowledge or information to form a belief about the
`
`truth of the allegations in Paragraph 86 of the Complaint, and thus deny them.
`
`87-95. Defendants deny the allegations in Paragraphs 87-95 of the Complaint.
`
`96.
`
`Defendants incorporate by reference the answering paragraphs set forth above in
`
`response to Paragraph 96 of the Complaint.
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`97-104 Defendants deny the allegations in Paragraphs 97-104 of the Complaint.
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`Defendants deny that Plaintiff is entitled to any relief from Defendants.
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`II.
`
`Affirmative Defenses and Other Matters.
`
`1.
`
`Although it is the Plaintiff’s burden to prove that it owns a valid copyright in the
`
`images at issue, Defendants affirmatively allege that some or all of the images at issue of
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`commercial properties available for lease lack sufficient creativity to constitute original works of
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`authorship warranting copyright protection.
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`Defendants’ First Amended Answer – Page 7
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`
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`Case 1:15-cv-00440-RP Document 20 Filed 07/08/15 Page 8 of 10
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`2.
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`To the extent that any of the images at issue embody any creative expression, the
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`Plaintiff’s claims are barred in whole or in part by the merger doctrine due to the limited
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`number of ways to convey the information contained in a photograph of a commercial property
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`available for lease.
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`3.
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`To the extent the Plaintiff owns any copyright in any of the images at issue of
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`commercial properties available for lease, its claims are barred, in whole or in part, by fair use,
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`based on the purpose and character of the use, the nature of the copyrighted work, the amount
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`and substantiality of the portion used, and the effect of use upon the potential market or value of
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`the allegedly copyrighted work. 17 U.S.C. § 107.
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`4.
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`To the extent the Plaintiff owns any copyright in any of the images at issue, its
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`claims are barred, in whole or in part, due to copyright misuse. The Plaintiff’s allegation of
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`copyright infringement is being used to claim rights broader than those granted by the Copyright
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`Act, to threaten penalties that exaggerate or misstate the law, to violate the public policy
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`embodied in the grant of copyright, to leverage control over areas outside the scope of their
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`alleged copyright, and to undermine the U.S. Constitution’s goal of promoting invention and
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`creative expression.
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`5.
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`To the extent the Plaintiff owns any copyright in any of the images at issue, its
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`claims are barred, in whole or in part, by acquiescence, authorization, estoppel, implied license,
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`laches, unclean hands, waiver and/or the Decision and Order entered in In the Matter of CoStar
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`Group, Inc., et al., Docket No. C-4368, U.S. Federal Trade Commission (August 29, 2012).
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`6.
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`To the extent that any infringement is found, such infringement was innocent as
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`the Defendants were not aware and had no reason to believe that their acts constituted an
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`infringement of the Plaintiff’s copyright.
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`Defendants’ First Amended Answer – Page 8
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`
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`Case 1:15-cv-00440-RP Document 20 Filed 07/08/15 Page 9 of 10
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`7.
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`Discovery has not yet begun and the Defendants’ investigation efforts are
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`ongoing. The Defendants therefore reserve the right
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`to supplement and/or amend their
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`affirmative defenses as warranted.
`
`Respectfully submitted,
`
`/s/ Matthew C. Powers
`Matthew C. Powers
`State Bar No. 24046650
`mpowers@gdhm.com
`Peter D. Kennedy
`State Bar No. 11296650
`pkennedy@gdhm.com
`GRAVES, DOUGHERTY, HEARON & MOODY, P.C.
`401 Congress Avenue, Suite 2200
`Austin, Texas 78701
`(512) 480-5600 Telephone
`(512) 480-5853 Telecopier
`
`ATTORNEYS FOR DEFENDANT
`REALMASSIVE, INC.
`
`Defendants’ First Amended Answer – Page 9
`
`
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`Case 1:15-cv-00440-RP Document 20 Filed 07/08/15 Page 10 of 10
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on July 8, 2015, I electronically filed the foregoing with the Clerk of
`Court using the CM/ECF system which will send notification of such filing to the following:
`
`Christopher D. Sileo
`SCOTT DOUGLASS & MCCONNICO, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`(512) 495-6300
`(512) 495-6399 (Fax)
`csileo@scottdoug.com
`
`Nicholas J. Boyle (pro hac vice pending)
`David Randall J. Riskin (pro hac vice pending)
`Eric J. Hamilton (pro hac vice pending)
`WILLIAMS & CONNOLLY, LLP
`725 12th Street, N.W.
`Washington, D.C. 20005
`(202) 434-5000
`(202) 434-5029 (Fax)
`nboyle@wc.com
`driskin@wc.com
`ehamilton@wc.com
`
`ATTORNEYS FOR COSTAR
`REALTY INFORMATION, INC.
`
`/s/ Matthew C. Powers
`Matthew C. Powers
`
`Defendants’ First Amended Answer – Page 10
`
`
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