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Regional Multiple Listing Service of Minnesota, Inc. v. American Home Realty Network, Inc.

United States District Court, D. Minnesota

December 10, 2013

REGIONAL MULTIPLE LISTING SERVICE OF MINNESOTA, INC., doing business as NorthStarMLS, Plaintiff,
v.
AMERICAN HOME REALTY NETWORK, INC., Defendant

Calvin L. Litsey, Mary Andreleita Walker, and Richard A. Duncan, FAEGRE BAKER DANIELS LLP, Minneapolis, MN; Jared B. Briant, FAEGRE BAKER DANIELS LLP, Denver, CO; and Brian N. Larson and Mitchell A. Skinner, LARSON/SOBOTKA PLLC, Minneapolis, MN, for plaintiff.

Chad A. Snyder, Adam P. F. Gislason, Matthew D. Schwandt, and Michael H. Frasier, SNYDER GISLASON FRASIER LLC, Minneapolis, MN, for defendant.

OPINION

Page 989

JOHN R. TUNHEIM, United States District Judge.

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO MODIFY AMENDED PRELIMINARY INJUNCTION

Plaintiff Regional Multiple Listing Service of Minnesota, Inc. (" RMLS" ) operates a real estate listing service called NorthstarMLS.

Page 990

RMLS brought this action for copyright infringement against Defendant American Home Realty Network, Inc. (" AHRN" ). The Court issued a modified preliminary injunction enjoining AHRN from displaying material copyrighted by RMLS without authorization. The modified preliminary injunction also ordered RMLS to place watermarks on all of the photographs on NorthstarMLS for which it owns a copyright and to remove watermarks from any photographs on NorthstarMLS for which it does not own a copyright. RMLS now moves this Court to amend its modified preliminary injunction under Federal Rule of Civil Procedure 60(b)(6) to strike the requirement that it identify its copyrighted photographs (and only its copyrighted photographs) with a watermark because it argues that it is unable to comply with the Court's order. The Court will grant RMLS's motion to amend the modified permanent injunction by striking the watermark provision, but will order RMLS to present an alternative method by which to indicate to AHRN and the Court which of the photographs in the NorthstarMLS database are subject to the preliminary injunction order.

BACKGROUND

Much of the background for this action is outlined in the Court's previous decisions. See Reg'l Multiple Listing Serv. of Minn., Inc. v. Am. Home Realty Network, Inc. (" RMLS II " ), Civ. No. 12-965, 960 F.Supp.2d 958, 2013 WL 3367132 (D. Minn. July 5, 2013); Reg'l Multiple Listing Serv. of Minn., Inc. v. Am. Home Realty Network, Inc. (" RMLS I " ), Civ. No. 12-965, 2012 WL 4470286 (D. Minn. Sept. 27, 2012). The Court will recite here only those facts relevant to this motion.

I. THE PARTIES

RMLS is a real estate listing cooperative company made up of more than 13,000 real estate brokers who pool and disseminate information on homes available for sale in Minnesota and western Wisconsin. Through NorthstarMLS, member-brokers enter into an agreement with RMLS to upload photographs and submit descriptions related to a property. When brokers upload photographs, they are prompted to enter into an agreement with RMLS (" Participant Agreement" ), under which they have the option of assigning twenty-five percent of any copyright they own in an image to RMLS (" Option I" ) or retaining any copyright the broker owns (" Option II" ). RMLS acknowledges that it does not own the copyrights to all of the images in its database, but asserts that ninety-seven percent of its members select Option I, thus assigning partial ownership of any copyright to RMLS. (Decl. of John Mosey ¶ 12, July 18, 2013, Docket No. 134.)

AHRN is a company that owns and operates www.neighborcity.com (" NeighborCity" ), which connects potential buyers with real estate agents based on the types of properties in which a buyer is interested. RMLS sued AHRN for copyright infringement under 17 U.S.C. § § 101 et seq. when it noticed that AHRN was posting on NeighborCity the photos and descriptions for which RMLS claims it owns the copyright. (Compl. ¶ ¶ 20-31, Apr. 18, 2012, Docket No. 1.) Specifically, RMLS alleged that AHRN had reproduced fifty photographs for which RMLS owns the copyright. ( Id. ¶ 16.)

II. SEPTEMBER 2012 PRELIMINARY INJUNCTION ORDER

The Court granted RMLS' motion for a preliminary injunction and enjoined AHRN " from engaging in any unauthorized copying, display, use, and/or public distribution of Plaintiff's copyrighted photographic works, including, without limitation, the works covered by U.S. Copyright

Page 991

Reg. Nos. TX VA 1-432-912; VA 1-432-913; VA 1-432-914; and VA 1-432-917." RMLS I, 2012 WL 4470286, at *11. The Court noted that RMLS acknowledged that it did not own the copyrights to all of the photographs in its database, but concluded that

because RMLS has registered its copyrights and AHRN has not challenged RMLS's copyright ownership for the purposes of this motion, the Court will decline to delineate between those items that RMLS does and does not own. The Court's injunction, however, will extend only insofar as copyrights are owned or co-owned by RMLS.

[WL] at *2 n.3. The Court also noted that " RMLS claims that it places watermarks on the photographs for which it owns copyrights." Id. The Court concluded that there was a rebuttable presumption that RMLS owns copyrights to the fifty photographs because the photographs were registered with the Copyright ...


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