UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VHT, INC., a Delaware corporation, Nos. 22-35147 22-35200 Plaintiff-Appellee/ Cross-Appellant, D.C. No. 2:15-cv-01096- v. JLR ZILLOW GROUP, INC., a Washington corporation; ZILLOW, OPINION INC., a Washington corporation,

Defendants-Appellants Cross-Appellees.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Argued and Submitted February 27, 2023 Seattle, Washington

Filed June 7, 2023 Before: M. Margaret McKeown, William A. Fletcher, and Ronald M. Gould, Circuit Judges.

Opinion by Judge McKeown 2 VHT, INC. V. ZILLOW GROUP, INC.

SUMMARY*

Copyright

The panel affirmed the district court’s judgment on remand in a copyright action brought by VHT, Inc., concerning the online display of photos by Zillow Group, Inc., and Zillow Inc., an online real estate marketplace. Thousands of copyrighted photos on Zillow’s site come from VHT, a professional real estate photography studio. Zillow used VHT’s photos on its real estate “Listing Platform,” which is the primary display of properties, and on a home design section of the website called “Digs.” Following summary judgment rulings, a jury trial, and various post-trial motions, the panel affirmed the district court in large part in prior appeal Zillow I. Essentially, the panel agreed with the district court that Zillow was not liable for direct, secondary, or contributory infringement. However, the panel determined that Zillow’s addition of searchable functionality on the Digs home design webpages was not fair use. The panel also reversed the jury’s finding that Zillow had willfully infringed 2,700 searchable photos displayed on Digs, and it remanded for consideration of statutory damages and a determination whether VHT’s photos used on Digs were part of a compilation or were individual photos. Following more motions and a bench trial on remand, the parties again appealed.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. VHT, INC. V. ZILLOW GROUP, INC. 3

The panel held that, on remand, the district court properly excused VHT’s compliance with the non- jurisdictional registration requirement of 17 U.S.C. § 411(a), which provides that no infringement action “shall be instated until preregistration or registration of the copyright has been made in accordance with this title.” Before filing suit, VHT submitted to the Copyright Office completed registration applications for its images, but the Copyright Office did not issue registration certificates until after the suit was filed. Fourth Estate Public Benefit Corp. v. Wall- Street.com, LLC, 139 S. Ct. 881 (2019), issued 11 days before Zillow I, overruled Ninth Circuit precedent and held that registration is made not when an application for registration is filed, but when the Copyright Register has registered a copyright after examining a properly filed application. On remand, Zillow argued for the first time that VHT failed to satisfy § 411(a)’s registration requirement and that its claims therefore must be dismissed. The panel held that the district court properly excused VHT’s failure to meet § 411(a)’s non-jurisdictional exhaustion requirement because copyright registration was wholly collateral to whether Zillow infringed on VHT's copyright, dismissing VHT’s claim after the statute of limitations had already expired would cause irreparable harm, and excusal would not undermine the purpose of adm