Case 2:21-cv-02382-ODW-AFM Document 28 Filed 08/20/21 Page 1 of 6 Page ID #:221
`
`
`
`O
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`United States District Court
`Central District of California
`
`
`Case No. 2:21-cv-02382-ODW (AFMx)
`
`
`ORDER GRANTING MOTION TO
`DISMISS [23]
`
`GEORGE GUTENBERG,
`
`
`
`
`Plaintiff,
`
`
`v.
`
`MOVE, INC.,
`
`
`
`
`
`
`Defendant.
`
`I.
`INTRODUCTION
`Plaintiff George Gutenberg brings a copyright infringement claim against
`Defendant Move Inc. Gutenberg claims Move displayed Gutenberg’s photographs on
`the website Realtor.com beyond the term of Move’s express license. (See Compl.
`¶ 38, ECF No. 1.) Move now moves to dismiss Gutenberg’s Complaint on the
`grounds that Move’s use of the Gutenberg’s photographs is not actionable. (See
`generally Mot. to Dismiss (“Motion” or “Mot.”), ECF No. 23.) For the reasons that
`follow, the Court GRANTS Move’s Motion to Dismiss.1
`
`
`1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the
`matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 2:21-cv-02382-ODW-AFM Document 28 Filed 08/20/21 Page 2 of 6 Page ID #:222
`
`
`
`II.
`BACKGROUND2
`Gutenberg is a professional photographer specializing in the field of
`Architecture and Interior Design. (Compl. ¶ 6.) He provides his photography services
`to residential real estate agents, taking photographs of their properties and issuing
`them a limited license to copy and display the photographs for one year. (Id. ¶¶ 15,
`19–21.) Gutenberg retains all ownership rights to his photographs. (Id. ¶ 19.)
`Move operates Realtor.com, a website that displays Multiple Listing Service
`(“MLS”) real-estate listings using an “IDX feed.” (Id. ¶ 27.) Real estate agents use
`MLSs to market property listings; an IDX feed is software that automatically updates
`and displays MLS listings, including photographs associated with the listing. (See id.
`¶¶ 25–27, 32.) Together, they allow real estate brokers who subscribe to an MLS to
`easily upload information about properties to the internet, where the listings are then
`automatically uploaded to websites like Realtor.com through the IDX feed. (See id.
`¶¶ 27, 29, 32.) Generally, the written terms and conditions of licenses between an
`MLS and a “non-participant” like Realtor.com’s owner do not permit display of listing
`information that has expired, been withdrawn, or been sold. (Id. ¶¶ 28, 33.)
`In the summer of 2019, Gutenberg discovered that Move was displaying 1,541
`of his photographs (the “Photographs”) on Realtor.com, even though the licenses
`granted to the real estate agents had expired and the properties were no longer listed
`for sale. (Id. ¶ 35.) Gutenberg’s Photographs appeared on various Realtor.com pages,
`including: “Track My Home,” “Find an Agent,” “Similar Homes Nearby,” and the
`respective properties’ summary pages. (Id. ¶¶ 40–44.)
`On March 17, 2021, Gutenberg sued Move for copyright infringement, for
`displaying the copyrighted Photographs in violation of his exclusive rights. (Id.
`¶¶ 45–50.) Move now moves to dismiss Gutenberg’s complaint for failure to state a
`claim. (See Mot.)
`
`
`2 All factual references derive from Plaintiff’s Complaint or attached exhibits, unless otherwise
`noted, and well-pleaded factual allegations are accepted as true for purposes of this Motion. See
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
` 2
`
`
`
`

`

`Case 2:21-cv-02382-ODW-AFM Document 28 Filed 08/20/21 Page 3 of 6 Page ID #:223
`
`
`
`III.
`LEGAL STANDARD
`A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable
`legal theory or insufficient facts pleaded to support an otherwise cognizable legal
`theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To
`survive a dismissal motion, a complaint need only satisfy the minimal notice pleading
`requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v.
`Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to
`raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
`550 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual
`matter, accepted as true, to state a claim to relief that is plausible on its face.”
`Ashcroft, 556 U.S. at 678 (internal quotation marks omitted).
`The determination of whether a complaint satisfies the plausibility standard is a
`“context-specific task that requires the reviewing court to draw on its judicial
`experience and common sense.” Id. at 679. A court is generally limited to the
`pleadings and must construe all “factual allegations set forth in the complaint . . . as
`true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles,
`250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept
`conclusory allegations, unwarranted deductions of fact, and unreasonable inferences.
`Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
`Where a district court grants a motion to dismiss, it should generally provide
`leave to amend unless it is clear the complaint could not be saved by any amendment.
`See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d
`1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court
`determines that the allegation of other facts consistent with the challenged pleading
`could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
`Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly
`denied . . . if amendment would be futile.” Carrico v. City and Cnty. of San
`Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011).
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
` 3
`
`
`
`

`

`Case 2:21-cv-02382-ODW-AFM Document 28 Filed 08/20/21 Page 4 of 6 Page ID #:224
`
`
`
`IV.
`DISCUSSION
`To prevail on a claim of copyright infringement, Gutenberg “must show
`ownership of the allegedly infringed material” and “demonstrate that the alleged
`infringers violate at least one exclusive right granted to copyright holders under
`17 U.S.C. § 106.” See A&M Recs. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.
`2001). Gutenberg must also establish causation, or “volitional conduct” in the
`automated-service provider context, such that Move was the direct cause of the
`copyright infringement. See VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 731–32
`(9th Cir. 2019).
`Move does not dispute that Gutenberg is the owner of the Photographs or that
`Gutenberg has exclusive rights in those Photographs granted by 17 U.S.C. § 106,
`specifically the rights to reproduce, prepare, distribute, and display the copyrighted
`work. (See generally Mot.) However, Move argues Gutenberg fails to allege
`volitional conduct, i.e., that Move itself, and not its users, selected, copied, and
`displayed the Photographs, and therefore his claim for copyright infringement fails.
`(Mot. 1, 6–7.)
`To establish volitional conduct, Gutenberg “must provide some evidence
`showing [Move] exercised control (other than by general operation of [its website]);
`selected any material for upload, download, transmission, or storage; or instigated any
`copying, storage, or distribution” of copyrighted material. Zillow, 918 F.3d at 732
`(internal quotation marks omitted). For instance, in Zillow, the Ninth Circuit found
`that “passive participation in the alleged infringement . . . is not sufficient to cross the
`volitional-conduct line.” Id. at 738. Zillow is a real estate marketplace website and
`hosted a “listing platform” that allowed real estate agents to upload images and
`information about properties. Id. at 730. The court held that Zillow did not infringe
`copyrights through its listing platform when third parties selected the photos that
`displayed, because Zillow exercised no control over content “beyond the ‘general
`operation of its website.’” Id. at 733 (quoting Perfect 10, Inc. v. Giganews, Inc.,
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
` 4
`
`
`
`

`

`Case 2:21-cv-02382-ODW-AFM Document 28 Filed 08/20/21 Page 5 of 6 Page ID #:225
`
`
`
`847 F.3d 657, 670 (9th Cir. 2017) (brackets omitted)). In contrast, to the extent
`Zillow’s own employees “selected and tagged” photographs to display on Zillow’s
`platform, Zillow was liable for copyright infringement. Id. at 736.
`Here, Gutenberg’s allegations fall short of volitional conduct. He alleges that,
`for Move’s website Realtor.com to display the Photographs, it must “refresh all MLS
`downloads and IDX displays automatically fed by those downloads.” (Compl. ¶ 32.)
`But this is no more than the general operation of Move’s website. See Zillow,
`918 F.3d at 732. Gutenberg further alleges that “Move displayed the Photographs on
`the Realtor.com website,” “Move’s volitional continued display of
`the
`Photographs . . . was the proximate cause of Gutenberg’s loss,” and Move violated his
`rights by displaying his Photographs after the listings expired. (Compl. ¶¶ 38–39, 47.)
`However, according to the Ninth Circuit, passive participation such as “displaying”
`the Photographs, without more, does not amount to volitional conduct. See Zillow,
`918 F.3d at 732–34. Gutenberg does not allege that Move’s employees “selected” or
`“tagged” any Photographs, and merely adding the word “volitional” before “display”
`does not suffice. See Sprewell, 266 F.3d at 988 (rejecting conclusory allegations).
`In sum, Gutenberg’s Complaint fails to allege that Move itself was actively
`involved in the alleged infringement, rather than simply a passive automated system,
`such that it “trespassed on the exclusive domain of the copyright owner.” Zillow,
`918 F.3d at 732 (quoting CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 550
`(4th Cir. 2004)). Gutenberg fails to show “volitional conduct” by Move to establish
`that Move was the direct cause of the copyright infringement. Id. at 731.
`Accordingly, Gutenberg’s claim for copyright infringement fails and the Court
`GRANTS Move’s Motion to Dismiss.
`Gutenberg requests leave to amend and contends amendment would not be
`futile because he can allege volitional conduct by Move in its subsequent display of
`the Photographs. (Opp’n Mot. 11–12, ECF No. 25.) As the Court cannot conclude
`that amendment would be futile, dismissal is with leave to amend.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
` 5
`
`
`
`

`

`Case 2:21-cv-02382-ODW-AFM Document 28 Filed 08/20/21 Page 6 of 6 Page ID #:226
`
`
`
`V. CONCLUSION
`For the reasons discussed above, the Court GRANTS Move’s Motion to
`Dismiss with leave to amend. (ECF No. 23.) Gutenberg may amend his Complaint
`to cure the deficiencies identified above within twenty-one days of the date of this
`order. Failure to timely amend will convert this dismissal to one with prejudice.
`
`IT IS SO ORDERED.
`
`
`
`
`August 20, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
` ____________________________________
` OTIS D. WRIGHT, II
`
` UNITED STATES DISTRICT JUDGE
`
`
`
`
` 6
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`
`
`