Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 1 of 14
`
`Hon. James L. Robart
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`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`Case No. 2:15-cv-01096-JLR
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`
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`ZILLOW’S MOTION FOR
`PARTIAL JUDGMENT
`ON THE PLEADINGS
`
`NOTE ON MOTION CALENDAR:
`May 13, 2016
`
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`VHT, INC., a Delaware corporation,
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`Plaintiff,
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`v.
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`ZILLOW GROUP, INC., a Washington
`corporation; and ZILLOW, INC., a Washington
`corporation,
`
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`Defendants.
`
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
`
`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
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`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 2 of 14
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`CONTENTS
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`
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`I.
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`II.
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`III.
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`IV.
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`INTRODUCTION .............................................................................................................. 4
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`FACTS ................................................................................................................................ 5
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`LEGAL STANDARDS ....................................................................................................... 6
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`ARGUMENT ...................................................................................................................... 7
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`A.
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`B.
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`C.
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`D.
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`Statutory Damages and Attorney Fees Are Not Available for
`Infringement of Unregistered Works. ..................................................................... 7
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`The Copyrights VHT Asserts Here Are Unregistered. ........................................... 9
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`In Fact, the Copyright Office Has Rejected and “Closed the File” on
`VHT’s Attempts to Register the Copyrights it Asserts Here. ............................... 10
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`The Court Should Rule on the Pleadings at this Time that Statutory
`Remedies Are Unavailable. ................................................................................... 11
`
`V.
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`CONCLUSION ................................................................................................................. 12
`
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
`
`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
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`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 3 of 14
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`
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`AUTHORITIES
`
`
`
`
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`Cases
`
`Choyce v. SF Bay Area Indep. Media Ctr.,
`No. 13-CV-01842, 2013 WL 6234628 (N.D. Cal. Dec. 2, 2013) ........................................ 9
`
`Cosmetic Ideas, Inc. v. IAC/Interactivecorp.,
`606 F.3d 612 (9th Cir. 2010) ................................................................................................ 8
`
`Derek Andrew, Inc. v. Poof Apparel Corp.,
`528 F.3d 696 (9th Cir. 2008) ................................................................................................ 9
`
`Dos Santos v. Telemundo Commc’ns Grp., LLC,
`No. 12-1373, 2012 WL 9503003 (C.D. Cal. Dec. 19, 2012) ............................................... 9
`
`Dworkin v. Hustler Magazine Inc.,
`867 F.2d 1188 (9th Cir. 1989) .............................................................................................. 7
`
`Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc.,
`896 F.2d 1542 (9th Cir. 1990) .......................................................................................... 6, 7
`
`Jones v. Collectal Associates,
`No. 15-CV-02223, 2016 WL 721279 (N.D. Cal. Jan. 29, 2016) ....................................... 10
`
`Mason v. Montgomery Data, Inc.,
`967 F.2d 135 (5th Cir. 1992) ................................................................................................ 9
`
`Milo & Gabby, LLC v. Amazon.com, Inc.,
`12 F. Supp. 3d 1341 (W.D. Wash. 2014) ........................................................................... 11
`
`Parrino v. FHP, Inc.,
`146 F.3d 699 (9th Cir. 1998) .............................................................................................. 11
`
`Ray Charles Found. v. Robinson,
`795 F.3d 1109 (9th Cir. 2015) ............................................................................................ 10
`
`Reed Elsevier, Inc. v. Muchnick,
`559 U.S. 154 (2010) ............................................................................................................. 8
`
`Shame on You Prods., Inc. v. Elizabeth Banks,
`120 F. Supp. 3d 1123 (C.D. Cal. 2015)................................................................................ 7
`
`Statutes
`
`17 U.S.C. § 412 ........................................................................................................................ 4, 8, 9
`
`17 U.S.C. § 504 ....................................................................................................................... passim
`
`ii
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
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`
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`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
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`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 4 of 14
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`17 U.S.C. § 505 ....................................................................................................................... passim
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`17 U.S.C. § 705 .............................................................................................................................. 11
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`Other Authorities
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`Compendium II of Copyright Office Practices
`§ 1902.03 ............................................................................................................................ 11
`
`Fed. R. Civ. P. 26(b)(1)
`2015 Advisory Comm. Note .............................................................................................. 12
`
`H. R. Rep. No. 94-1476 (1976),
`reprinted in 1976 U.S.C.C.A.N. 5659 ................................................................................. 8
`
`Rules
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`Fed. R. Civ. P. 12(b) ........................................................................................................................ 7
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`Fed. R. Civ. P. 12(c) ......................................................................................................................... 6
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`Fed. R. Civ. P. 26(b)(1) .................................................................................................................. 12
`
`iii
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
`
`
`
`
`
`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
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`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 5 of 14
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`INTRODUCTION
`I.
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`Zillow moves for judgment on the pleadings as to VHT’s requests for statutory damages
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`and attorney fees because, in light of the facts alleged in VHT’s complaint, those remedies are
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`legal impossibilities in this case. 17 U.S.C. §§ 504 and 505 authorize statutory damages and
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`attorney fees in copyright cases, but with a key prerequisite: 17 U.S.C. § 412 of the same statute
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`provides that neither of these remedies “shall be made for” the infringement of unregistered
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`copyrights. VHT’s copyrights are not registered.
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`Although artful pleading in VHT’s complaint somewhat obfuscates the facts, they are
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`these: at the time of its initial complaint VHT had filed applications for copyright registration;
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`since that time, all of those applications have been rejected. In a series of letters dated three
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`months after VHT’s initial complaint, the United States Copyright Office announced its
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`affirmative decision to refuse VHT’s applications, because VHT’s works do not meet the criteria
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`for registration. This formal notice of rejection – the fact of which is not subject to reasonable
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`dispute and which is public record – is judicially noticeable, and therefore fatal to any attempt by
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`VHT to recover remedies under §§ 504 or 505.
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`This state of affairs is a textbook case warranting a judgment on the pleadings pursuant to
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`Rule 12(c) of the Federal Rules of Civil Procedure. Without registration, VHT simply cannot
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`clear the statutory hurdle to statutory damages or attorney fees. Or, put another way, the
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`allegations in VHT’s complaint cannot possibly support the award of statutory remedies, because
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`VHT will never be entitled to such remedies unless the facts about its registration status change.
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`A ruling on this legal issue now, before discovery begins in earnest, will narrow the parties’ focus
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`to what is actually on the table at trial. In addition to clarifying the scope of discovery, a ruling
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`now will also provide guidance as to its depth; recent amendments to the Federal Rules of Civil
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`Procedure re-emphasized that a court must give the amount in controversy considerable weight
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`when it considers whether a discovery undertaking is unduly burdensome. Clarifying what
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`remedies are, and are not, available will do exactly that. For these reasons, and for the reasons
`
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
`
`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
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`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 6 of 14
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`that follow, Zillow respectfully requests that this Motion for Partial Judgment on the Pleadings be
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`granted.
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`II. FACTS
`On July 8, 2015, Plaintiff VHT, Inc. (“VHT”) filed this action alleging that Defendants
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`Zillow Group, Inc., and Zillow, Inc. (collectively, “Zillow”) have infringed VHT’s copyrights in
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`certain photographs, under 17 U.S.C. § 106. See ECF Nos. 1, 24 (summarizing issues in case).
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`The initial complaint asserted that “VHT registers its copyrights” in those photographs,
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`and that VHT “has been filing additional registrations” on a quarterly basis. Id. ¶27. In fact, the
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`“registrations” to which VHT referred were mere applications that it had filed; an important
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`distinction that VHT’s complaint only incidentally acknowledged when it described those
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`registrations as “pending.” Id. The remainder of VHT’s complaint misrepresented the registration
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`status of its photographs, however, by repeatedly referring to VHT’s “registered copyrighted
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`photographs” (id. ¶83), or “registered works” (id. ¶¶95, 106, 114). See also ECF No. 24 at 3
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`(VHT’s portion of joint status report, complaining of infringement of its “registered copyright-
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`protected images”); id. at 6 (“registered images”).
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`VHT’s disregard for the distinction between a registered copyright and an application for
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`such registration may have had little legal effect had its applications ultimately been granted, but
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`that is not what happened: on September 22, 2015, the United States Copyright Office sent VHT
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`a series of letters providing notice that it had investigated VHT’s applications and was rejecting
`all of them. Exs. A-C.1 Each letter stated, after setting forth the requirements for registration, that:
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`You have attempted to comply with these requirements, but there is not
`sufficient compilation authorship. We are refusing to register these databases
`and are closing the files.
`Id. The letters thus disposed of eight of VHT’s ten pending applications. Rather than pursue the
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`approval of the other two applications, which presumably remained open, VHT filed an
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`application for reconsideration of the rejections on December 14, 2015, acknowledging that the
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`1 All references to “Ex.” herein refer to Exhibits to the concurrently-filed Declaration of Patrick C. Bageant.
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`5
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
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`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
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`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 7 of 14
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`registerability of all ten applications would rise or fall together, because each presented the same
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`issues. Ex. D at 2. Although that application for reconsideration remains pending, the Copyright
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`Office has not yet reconsidered its rejections, and VHT’s copyrights remain unregistered.
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`Notwithstanding the undisputable fact that none of the copyrights that VHT alleges Zillow
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`to have infringed are registered, VHT filed its First Amended Complaint (“FAC”) on January 20,
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`2016. ECF No. 53. The FAC echoed the assertions in VHT’s initial complaint, alleging that VHT
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`“registers its copyrights” and “has filed applications to register photographs in its database
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`created from the beginning of 2010 through the end of the third quarter of 2015.” Id. ¶29.
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`Although technically accurate – VHT had, in fact, “filed applications” – the statement is
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`incomplete: the Copyright Office had also rejected the applications four months prior. Continuing
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`in the vein of partial disclosure, the FAC purported to include “[t]rue and correct copies of the
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`applications for VHT’s registrations” as exhibits, but made no mention of the status of those
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`applications (rejected), or of the fact that VHT was no longer seeking simply registration, but
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`reconsideration and reversal of the Copyright Office’s determination. Like the original complaint,
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`the FAC then proceeded to assert that Zillow had infringed VHT’s “registered works.” Id. ¶¶128,
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`138, 147.
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`Based upon its factually incorrect classification of the works at issue as “registered,”
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`VHT’s FAC (like the original complaint) sought statutory damages under 17 U.S.C. § 504(c) for
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`alleged infringement by Zillow “after the effective date of VHT’s registration.” ECF No. 53 ¶111;
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`see also id. ¶¶124, 135, 143, 152. The FAC also sought attorney fees pursuant to 17 U.S.C. § 505.
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`Id. at 42.
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`III. LEGAL STANDARDS
`Judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is
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`proper “when the moving party clearly establishes on the face of the pleadings that no material
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`issue of fact remains to be resolved and that it is entitled to judgment as a matter of law.” Hal
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`Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). A
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`6
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
`
`
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`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
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`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 8 of 14
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`motion for judgment on the pleadings is thus “functionally identical” to a motion to dismiss under
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`Rule 12(b) of the Federal Rules of Civil Procedure, the principal difference between them being
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`“the time of filing.” Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).
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`Unlike a Rule 12(b) motion, so long as a Rule 12(c) motion is “early enough not to delay trial” it
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`may be brought at any time “[a]fter the pleadings are closed.” Fed. R. Civ. P. 12(c). The
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`pleadings “are closed for the purposes of Rule 12(c) once a complaint and answer have been
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`filed.” Shame on You Prods., Inc. v. Elizabeth Banks, 120 F. Supp. 3d 1123, 1142 (C.D. Cal.
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`2015) (granting Rule 12(c) motion in copyright case).
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`IV. ARGUMENT
`The pleadings on VHT’s FAC have closed, and they show that Zillow is entitled to
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`judgment in its favor on VHT’s claim to statutory damages under 17 U.S.C. § 504(c), and to
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`attorney fees under 17 U.S.C. § 505. Each of those remedies requires – as a statutory prerequisite
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`– that the allegedly infringed work be registered with the United States Copyright Office, yet the
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`face of the FAC does not contain any fact to support the essential element of registration. This is
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`because VHT’s attempt to register its copyrights have been denied. These facts (lack of
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`registration combined with outright rejection), no matter how charitably construed in VHT’s
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`favor, simply cannot add up to a finding that VHT’s copyrights have been “registered.” Judgment
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`on the pleadings as to each claim by VHT that requires registration is therefore appropriate. Hal
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`Roach Studios, 896 F.2d at 1550 (judgment on the pleadings is appropriate where the moving
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`party establishes, construing all facts in the non-moving party’s favor, “that it is entitled to
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`judgment as a matter of law.”).
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`A.
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`Statutory Damages and Attorney Fees Are Not Available for Infringement of
`Unregistered Works.
`Although a copyright holder can sue for infringement at any time within the statute of
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`limitation, her remedies are more constrained if the copyrights at issue are not registered: she will
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`be entitled to statutory damages and attorney fees only if her copyright is registered with the
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`7
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
`
`
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`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
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`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 9 of 14
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`Copyright Office. This carrot approach – whereby Congress has sought to incentivize copyright
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`holders to register their works by barring the availability of statutory damages and attorney fees
`until they do so2 – is codified in 17 U.S.C. § 412 (“Registration as prerequisite to certain
`remedies for infringement”):
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`In any action under this title . . . no award of statutory damages or of attorney’s
`fees, as provided by sections 504 and 505, shall be made for3—
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`(1) any infringement of copyright in an unpublished work commenced before
`the effective date of its registration; or
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`(2) any infringement of copyright commenced after first publication of the
`work and before the effective date of its registration, unless such
`registration is made within three months after the first publication of the
`work.
`§ 412. That is, if a work has never been published, “no award of statutory damages or of
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`attorney’s fees” is permissible before the date it is registered. Id. If the work has been published,
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`“no award of statutory damages or of attorney’s fees” is available before the date of publication
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`(unless the work became registered less than three months later). Id. Whether the work is
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`published or not, the rule is therefore clear: registration is an absolute “prerequisite” to statutory
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`damages or attorney fees. Id.
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`Merely filing an application, without waiting to obtain registration, is not sufficient basis
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`to authorize a lawsuit for statutory remedies. Although federal courts have jurisdiction over
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`infringement claims even for unregistered copyrights (Reed Elsevier, Inc. v. Muchnick, 559 U.S.
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`154, 169 (2010)), and plaintiffs in the Ninth Circuit may file suit based on application without
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`waiting
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`for
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`the Copyright Office
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`to grant
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`registration
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`(Cosmetic
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`Ideas,
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`Inc. v.
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`IAC/Interactivecorp., 606 F.3d 612, 618-20 (9th Cir. 2010)), that rule pertains only to the legal
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`2 See H. R. Rep. No. 94-1476, at 158 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5774 (“Copyright registration . . .
`is useful and important to users and the public at large . . . and should therefore be induced in some practical way.”).
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`3 The ellipses in this quotation is § 412’s language providing a narrow exception for actions under §§ 106A(a),
`408(f), or 411(c). The language is omitted for clarity because those sections are not pertinent to this case. See ECF
`No. 53 ¶¶109, 122, 128, 138, 147 (each alleging infringement under §§ 1061(1), (2), (3) or (5)).
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`8
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
`
`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
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`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 10 of 14
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`right to file suit, not the remedies available. The statutory framework set forth by 17 U.S.C.§ 412
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`speaks directly to the remedy, and controls its availability. See Choyce v. SF Bay Area Indep.
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`Media Ctr., No. 13-CV-01842, 2013 WL 6234628, at *3 (N.D. Cal. Dec. 2, 2013) (plaintiff was
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`given leave to amend complaint that failed to allege that the plaintiff had received or even applied
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`for registration, but the amended complaint would not be permitted to seek statutory damages
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`because registration had not occurred before alleged infringement began); Dos Santos v.
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`Telemundo Commc’ns Grp., LLC, No. 12-1373, 2012 WL 9503003, at *7 (C.D. Cal. Dec. 19,
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`2012) (“The Court STRIKES Plaintiffs’ request for attorneys’ fees and costs and statutory
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`damages because the works were not registered when the infringement began.”).
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`B.
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`The Copyrights VHT Asserts Here Are Unregistered.
`VHT’s FAC (ECF No. 53) and its exhibits do not contain a single copyright registration
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`certificate or number. Rather, they contain only VHT’s applications for registration. See ECF No.
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`53-1. It is self-evident that an “application” for copyright registration is not an actual grant of
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`“registration” any more than an application for a loan is a loan; in both instances, the approval of
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`an application creates legal rights that the mere filing of such application does not. The FAC and
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`the documents that VHT attached to it simply do not show that VHT registered the copyrights at
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`issue, and therefore provide no indication that the remedies available to the owner of registered
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`copyrights in the event those copyrights have been infringed are available to VHT.
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`Nor does the speculative possibility that the Copyright Office might someday reverse
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`course and register VHT’s works alter the analysis: in the Ninth Circuit “the first act of
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`infringement in a series of ongoing infringements of the same kind marks the commencement of
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`one continuing infringement under § 412.” Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d
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`696, 701 (9th Cir. 2008) (emphasis in original). Thus, even taking all of VHT’s allegations as
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`truth, the infringement charged in VHT’s FAC can never be the basis for an award under §§ 504
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`or 505. Mason v. Montgomery Data, Inc., 967 F.2d 135, 144 (5th Cir. 1992) (a plaintiff may not
`
`9
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
`
`
`
`
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`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
`
`
`
`

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`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 11 of 14
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`recover statutory damages for infringements that commenced after registration if the same
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`defendant commenced an infringement of the same work prior to registration).
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`C.
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`In Fact, the Copyright Office Has Rejected and “Closed the File” on VHT’s
`Attempts to Register the Copyrights it Asserts Here.
`VHT’s situation is worse, however, than the mere absence of a registration: the Copyright
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`Office has denied VHT’s applications, stating in multiple letters that:
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`The selection and/or arrangement of entries in this work do not meet the
`requirements of original compilation authorship. . . . You have attempted to
`comply with these requirements, but there is not sufficient compilation
`authorship. We are refusing to register this database and are closing the file.
`Exs. A-C. VHT thus has no argument that it is merely waiting for the paperwork to go through;
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`the Copyright Office has made known its refusal to process it.
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`VHT will protest, no doubt, that it has filed an application for “reconsideration” of the
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`Copyright Office’s rejections of its applications. Factually, that is true. But that only underscores
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`the fatal reality: VHT does not hold copyright registrations. Only by “reconsidering” the refusal
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`to issue – that is, by changing the facts into something different than what they are – could VHT
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`ever amend its complaint to provide a basis for to statutory remedies.
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`VHT may also make a formalistic argument that the Court should not consider the
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`Copyright Office’s rejections of its applications, because the rejections were not attached to or
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`incorporated into its FAC. Setting aside the compelling equitable reasons to correct the FAC’s
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`failure to tell the whole story, that argument has no merit. This Court can consider the Copyright
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`Office’s rejection under several black-letter doctrines.
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`First, the Court can take judicial notice of the fact that the Copyright Office has rejected
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`VHT’s applications, because it is a matter of public record. Ray Charles Found. v. Robinson, 795
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`F.3d 1109, 1114 (9th Cir. 2015) (taking judicial notice of Copyright Office records of voluntary
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`termination of registration because courts “may take judicial notice of undisputed matters of
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`public record.”); see also Jones v. Collectal Associates, No. 15-CV-02223, 2016 WL 721279, at
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`*1 (N.D. Cal. Jan. 29, 2016), adopted sub nom. No. 15-CV-02223, 2016 WL 879870 (N.D. Cal.
`
`10
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
`
`
`
`
`
`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
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`
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`

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`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 12 of 14
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`Mar. 8, 2016) (“The Court takes judicial notice of public records of the United States Copyright
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`Office [showing the content of, and facts about, a photograph]”). Like the termination notices in
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`Ray Charles Foundation, and like the photograph in Jones, the Copyright Office’s refusal to
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`register VHT’s copyrights is a matter of public record. See 17 U.S.C. § 705 (providing that
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`copyright office records shall be maintained, and that such records “shall be open to public
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`inspection.”); Compendium II of Copyright Office Practices § 1902.03 (“Official correspondence,
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`including . . . a rejected application for registration . . . is open for public inspection and
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`copying.”) (emphasis added). The fact that the rejection occurred is thus fully within the ambit of
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`judicial notice.
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`Second, a separate but equally valid ground for judicial notice is that the Copyright
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`Office’s ruling is integral to VHT’s claims. Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.
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`1998) (a district court may consider “documents crucial to the plaintiff's claims, but not explicitly
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`incorporated in his complaint” when doing so will prevent “plaintiffs from surviving a
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`[dispositive] motion by deliberately omitting references to documents upon which their claims are
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`based.”). Thus, “district courts may take judicial notice of documents that the pleadings do not
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`mention, provided the documents are integral to the plaintiff’s claims.” Milo & Gabby, LLC v.
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`Amazon.com, Inc., 12 F. Supp. 3d 1341, 1351 (W.D. Wash. 2014). Here, there can be no serious
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`dispute that the Copyright Office’s ruling on VHT’s registration application is “integral” to
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`VHT’s statutory damages and attorney fee claims; VHT is barred entirely from obtaining those
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`remedies until and unless it obtains registration. Indeed, it would be absurd to proceed as if this
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`basic matter of public record did not exist given that it is central to – and dispositive of – VHT’s
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`statutory damages and attorney fee claim.
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`D.
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`The Court Should Rule on the Pleadings at this Time that Statutory Remedies Are
`Unavailable.
`Because registration is a statutory prerequisite to statutory damages and attorney fees, and
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`because the public record nullifies any argument that VHT has met it, Zillow respectfully submits
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`that it is entitled to ruling in its favor on those issues.
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`11
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
`
`
`
`
`
`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
`
`
`
`

`

`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 13 of 14
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`Aside from the fact that Zillow is legally entitled to a judgment are tremendous practical
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`reasons for the Court to enter one: the unwarranted inclusion of the issues of statutory damages
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`and attorney fees in the FAC are impeding the orderly progression of this litigation. VHT’s FAC
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`asserts that it is entitled to statutory damages and fees amounting to tens of millions of dollars. An
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`order confirming that this drastic windfall is not available to VHT will not only sharpen and
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`narrow the issues for trial, it will also set boundaries on the extent of damages and liability for
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`both parties. This will assist the parties and Court in weighing the amount in controversy, which
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`is a significant factor in evaluating proportionality under rule 26(b)(1) (see Fed. R. Civ. P.
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`26(b)(1) & 26(b)(1) 2015 Advisory Comm. Note), and will increase the likelihood of a non-
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`judicial resolution of this action.
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`V. CONCLUSION
`For the foregoing reasons, Zillow respectfully requests a judgment that statutory remedies
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`under 17 U.S.C. §§ 504 and 505 are not available to VHT, because its copyrights at issue are not
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`registered.
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`
`
`Dated: April 20, 2016
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`By: /s/ Patrick C. Bageant
`Brooke A. M. Taylor, WA Bar # 33190
`E-Mail: btaylor@susmangodfrey.com
`Patrick C. Bageant, WA Bar # 44268
`E-Mail: pbageant@susmangodfrey.com
`SUSMAN GODFREY L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101
`Telephone:
`(206) 516-3880
`Facsimile:
`(206) 516-3883
`Attorneys for Zillow Group, Inc. and Zillow, Inc.
`
`12
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
`
`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
`
`
`
`

`

`Case 2:15-cv-01096-JLR Document 69 Filed 04/20/16 Page 14 of 14
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`CERTIFICATE OF SERVICE
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`I hereby certify that on April 20, 2016, I electronically filed the foregoing with the Clerk
`of the Court using the CM/ECF system which will send notification of such filing to all counsel
`of record:
`
`By: /s/ Patrick C. Bageant
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`
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`
`
`ZILLOW’S MOTION FOR PARTIAL JUDGMENT
`ON THE PLEADINGS
`Case No. 2:15-cv-01096-JLR
`
`Susman Godfrey LLP
`1201 Third Avenue, Suite 3800
`Seattle WA 98101-3000
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