Reg'l Multiple Listing Serv. of Minn., Inc. v. Am. Home Realty Network, Inc.
| Decision Date | 27 September 2012 |
| Docket Number | Civil No. 12-965 (JRT/FLN) |
| Parties | REGIONAL MULTIPLE LISTING SERVICE OF MINNESOTA, INC., doing business as NorthStarMLS, Plaintiff, v. AMERICAN HOME REALTY NETWORK, INC., Defendant. |
| Court | U.S. District Court — District of Minnesota |
Plaintiff Regional Multiple Listing Service of Minnesota, Inc. ("RMLS") brought this action for copyright infringement against defendant American Home Realty Network, Inc. ("AHRN"). RMLS owns the NorthstarMLS® Database ("NorthstarMLS®"), a private database that contains active real estate listings, comparable and sold properties, and property records from Minnesota and Wisconsin. (Compl. ¶ 9, Apr. 18, 2012, Docket No. 1.) RMLS claims that AHRN unlawfully reproduced NorthstarMLS's® copyrighted photographs and content on AHRN's website,http://www.NeighborCity.com ("NeighborCity"). Specifically, RMLS alleges that AHRN has reproduced (1) the selection of fields, descriptors, and other content on NorthstarMLS® as well as (2) fifty photographic works on NorthstarMLS® that depict property in Minnesota. (Compl. ¶ 16; Supp. Decl. of John Mosey ¶ 2, June 1, 2012, Docket No. 21.) RMLS seeks a preliminary injunction to protect its copyrights during the pendency of this action. AHRN moves to dismiss for lack of jurisdiction or, in the alterative, to transfer this case to the Northern District of California. For the reasons explained below, the Court will deny AHRN's motion to dismiss or transfer this action and will grant in part RMLS's motion for a preliminary injunction.
RMLS is a Minnesota corporation with its principal place of business in St. Paul, Minnesota. (Compl. ¶ 3.) It is a multiple listing service1 company that serves more than 13,000 real estate brokers and agents in Minnesota and western Wisconsin. (Id. ¶ 8.)
RMLS provides information to participating brokers and real estate agents through NorthstarMLS®. NorthstarMLS® participants enter into an agreement with RMLS to upload their real estate listings to NorthstarMLS®. (Decl. of John Mosey ¶ 4, May 16, 2012, Docket No. 18.) The participants upload photographs of a property, enter somefactual information, such as list price, and also select other items from a dropdown menu of "field descriptors" created by RMLS, such as "Main Floor Full Bath," "Private Master," and "Whirlpool." (See Decl. of Tim Schirm, Ex. C at 6, May 17, 2012, Docket No. 17.) In return, RMLS sends to a participating broker's consumer-facing website an "IDX Data Feed" that includes the broker's own listings and the listings of all other NorthstarMLS® participants. (Mosey Decl. ¶ 4.) According to RMLS, brokers benefit from receiving the IDX Data Feed because potential buyers who visit a broker's website to view the listings may be persuaded to hire the broker and its agents. (Id.) Agents and brokers also use NorthstarMLS® for access to real estate listings and information in their respective markets. (Compl. ¶ 9.)
RMLS has registered copyrights in the selection, coordination, and arrangement of the fields, descriptors, and content on NorthstarMLS® ("the compilation content"). (Compl. ¶ 11.) (Id.; Mosey Decl., Ex. C.)2 Below is an example of the compilation content that RMLS created for a property in Chisago Lake Township, Minnesota:
(Schirm Decl., Ex. E at 8.) In addition to the compilation content, RMLS has registered the copyrights in some of the photographs that accompany listings for real estate on NorthstarMLS®. (Compl. ¶ 12.)
In some cases, RMLS has complete ownership over its copyrights. RMLS also gives participants in NorthstarMLS® the option of joint ownership of copyrights to the materials they submit, with RMLS owning twenty-five percent undivided interest in the copyrights and the participant holding a seventy-five percent interest. (See Mosey Decl., Ex. A at 3.) If the broker chooses this option, RMLS's contract states that the broker"may make unfettered and unrestricted use of the [copyrighted item] in perpetuity." 3
Participants of NorthstarMLS® are prohibited from leaking content from the database beyond the data that they contribute, however. (Id., Ex. A at 5.) Participants are liable for at least $1,000 in liquidated damages for each real estate listing they disclose in contravention of their contract with RMLS. (Id., Ex. A at 5.) In turn, RMLS agrees not to distribute participant listings to any third party that does not subscribe to NorthstarMLS® unless it first obtains the express written permission of the participant. .)
AHRN is a Delaware corporation, with its principal place of business in San Francisco, California. (Decl. of Ali Vahabzadeh ¶¶ 1, 3-6, May 11, 2012, Docket No. 10.) AHRN owns NeighborCity, (Supp. Decl. of Ali Vahabzadeh ¶ 3, June 7, 2012, Docket No. 26), and manages, maintains, and operates it from offices in California, (Vahabzadeh Decl. ¶ 4). AHRN's ten employees all reside in California, and AHRN hasnever had any employees or business representatives travel to Minnesota for business purposes. (Id. ¶¶ 3, 6.)
NeighborCity offers three primary services to its visitors. First, NeighborCity offers information to visitors about properties for sale, including listing prices, photographs, and descriptors of certain property features. NeighborCity advertises this service by stating, "Whether you're a buyer, seller, real estate agent or just shopping; NeighborCity brings you the most complete look at your local real estate market." (Supp. Mosey Decl., Ex. R.) According to AHRN, the data displayed about properties on NeighborCity is obtained from multiple sources, none of which involve direct access to NorthstarMLS®.4
Second, NeighborCity connects prospective buyers with buy-side real estate agents. (See id., Ex. R.) Users may click a "contact" button provided on an agent's profile, after which AHRN contacts the agent to make sure that he or she is available. Ifthe agent is available, AHRN passes the user's request on to the agent, and the agent may contact the user through a temporary telephone number assigned to forward calls to the user. If the agent is unavailable or not interested in participating, AHRN repeats this process with other agents until it locates and contacts an available agent. (Vahabzadeh Decl. ¶ 10.) Users may also click a "Request Information" link or a "Schedule a Viewing" link, after which AHRN will route a user's request to an available agent. (Id. ¶ 10.)
AHRN is compensated for its agent matching and referral services by taking a percentage - it appears thirty percent - of a local agent's commission if the agent sells a property to a buyer who contacted the agent via NeighborCity. (See id. ¶ 11.)5 At oral argument, AHRN stated that it sometimes enters into contracts to obtain these commissions electronically over the NeighborCity website.
The final service NeighborCity offers is providing performance metrics, rankings, and statistics regarding real estate agents to assist buyers in finding an effective agent. (Id. ¶ 8; Supp. Vahabzadeh Decl. ¶¶ 3-6.) AHRN claims this is a unique service offered by NeighborCity.
The parties dispute the level of similarity between NeighborCity and NorthstarMLS®. AHRN points out that NeighborCity does not copy all of the content onNorthstarMLS®. In its listings, NorthstarMLS® provides information including brief property descriptions, list prices, years built, features of lake/waterfront properties, above ground square footages, statuses of ownership, the dimensions and size of lots, homestead statuses, features of fuel systems, water systems, and sewer systems, coordinates for exact locations, specific room dimensions, bathroom details, and some financial and tax information. (See Schirm Decl., Exs. C and D.) NeighborCity, in contrast, includes only some of this information. (See id., Ex. E.) NeighborCity does not, for example, have a breakdown of individual room dimensions. (See id.) NeighborCity is also formatted differently than NorthstarMLS®. (See id., Ex. E.) For example, the list price on NeighborCity is located to the right of the address, not below the address like on NorthstarMLS®. (See id., Ex. E.)
RMLS claims, however, that NeighborCity and NorthstarMLS® have substantial similarities. NeighborCity displayed the fifty copyrighted photographs that are the subject of this action. (Id. ¶ 18.)6 A side-by-side comparison of RMLS's compilation content and NeighborCity's listings also reveals...
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