Costar Realty Information, Inc. et al v. Apartment Hunters, Inc. et al

Filing 62

JUDGMENT AND PERMANENT INJUNCTION by Judge Josephine L. Staton. Judgment is hereby entered in favor of Plaintiffs and against Defendant AHI on Plaintiffs' claims of copyright infringement and misappropriation. Related to: Stipulation for Judgment 61 . The Court ORDERS that a Permanent Injunction is entered as follows: See Judgment for more information. (MD JS-6. Case Terminated). (twdb)

JS-6
1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION

9
10
11
12

COSTAR REALTY INFORMATION,
INC., and APARTMENTS, LLC,

13

Plaintiffs,

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

vs.
APARTMENT HUNTERS, INC.,
KEVIN SHAYAN, and STEVEN
SHAYAN,
Defendants.

Case No. 8:15-cv-02111-JLS-KES
JUDGMENT AND PERMANENT
INJUNCTION
The Honorable Josephine L. Staton

JUDGMENT

1
2

Pursuant to the stipulation of Plaintiffs CoStar Realty Information, Inc., and

3

Apartments, LLC, (collectively, “Plaintiffs” or “CoStar”) and Defendants

4

Apartment Hunters, Inc. (“AHI”), Kevin Shayan, and Steven Shayan (collectively,

5

“Defendants”), this Court hereby ORDERS that final judgment shall be and is

6

hereby entered in this action as follows:

7

1.

Judgment is hereby entered in favor of Plaintiffs and against

8

Defendant AHI on Plaintiffs’ claims of copyright infringement and

9

misappropriation.

10

2.

Defendants are providing consideration to Plaintiffs by entering into

11

the separate Release and Settlement Agreement signed by the Parties. Plaintiffs

12

and Defendants shall each bear their own attorneys’ fees and costs in this action.
PERMANENT INJUNCTION

13
14

Pursuant to the stipulation of Plaintiffs and Defendants, and for good cause

15

shown, this Court hereby ORDERS that a Permanent Injunction is entered as

16

follows:

17

1.

18
19

For the purposes of this Permanent Injunction, the following

definitions shall apply:
a.

“AHI” shall mean Defendant Apartment Hunters, Inc., and any

20

parent, subsidiary, sister company, affiliate, related entity, assignee,

21

transferee, designee, alter ego, or successor in interest.

22

b.

The “AHI System” shall mean the AHI Websites, as defined

23

below, the services accessible through such websites, and any servers,

24

software, and electronic data that make up or support such websites and

25

services, as well as any other websites or social media accounts associated

26

with such websites.

27

c.

The “AHI Websites” shall mean any and all websites owned or

28
1

1

operated, now or in the future, by

2

i. AHI;
ii. any parent, subsidiary, sister company, affiliate, related

3
4

entity, assignee, transferee, designee, alter ego, or successor

5

in interest of AHI; or
iii. any other corporate entity owned or operated, now or in the

6
7

future by any employee, owner, shareholder, or officer (as of

8

the date of this Permanent Injunction) of any entity set forth

9

in paragraphs 1(c)(i)-(ii) above,

10

which (i) disseminates property rental information, including but not limited

11

to the websites presently located at www.apartmenthunterz.com,

12

www.featuredrentals.com, www.ifindrentals.com, wetakesection8.com,

13

4rentinla.com, 4rentinnewyork.com, leaseinsandiego.com,

14

rentinsanfrancisco.com, ineed2tomove.com, findforeclosuresnow.com, and

15

foreclosureplaces.com, or (ii) utilizes any of AHI’s: content, data, databases,

16

source code, object code, other technology (excluding generic hardware, e.g.

17

computer servers), domain names, trademarks, brands, assets, or goodwill.

18
19
20

d.

“Apartments.com” shall mean the websites operated by

Plaintiffs, including the website presently located at www.apartments.com.
e.

“CoStar Photograph(s)” shall mean any and all copyrighted

21

images (or portions thereof), whether in the form of a photograph, video, or

22

other non-textual format, and whether now in existence or later created, in

23

which Plaintiffs (including their parents, subsidiaries, or affiliates) own or

24

control an exclusive right under Section 106 of the United States Copyright

25

Act (17 U.S.C. § 106).

26
27

f.

“CoStar Information” shall mean any and all property listing

information or data, whether now in existence or later created, which (i) is

28
2

1

displayed on Apartments.com or any other website operated by Plaintiffs

2

now or in the future; and (ii) Defendants obtained from CoStar, whether

3

directly from CoStar or indirectly through a third party (or through a chain

4

of third parties) which originally obtained the information or data from

5

CoStar and which does not have CoStar’s written authorization to distribute

6

the information or data. For the avoidance of doubt, CoStar Information

7

does not include information or data which CoStar and Defendants each

8

independently obtain (and each have independent authority to obtain) from

9

the same common source.
g.

10
11

Information.

12

2.

“CoStar Content” shall mean any CoStar Photograph or CoStar

Defendants, and each of them, shall be permanently restrained and

13

enjoined from (a) infringing, by any means, directly or indirectly, any exclusive

14

rights under the Copyright Act in CoStar Photographs, or (b) publishing or

15

displaying CoStar Information on the AHI Websites or otherwise

16

misappropriating, by any means, directly or indirectly, any CoStar Information.

17

3.

Should CoStar obtain knowledge of any CoStar Content appearing on

18

any AHI Website, the following notice and cure protocol (the “Notice and Cure

19

Protocol”) shall apply:

20

a.

CoStar shall give written notice to AHI, and its counsel, as

21

designated in paragraph 4.1 of the Release and Settlement Agreement,

22

within ten (10) calendar days of CoStar obtaining knowledge of such CoStar

23

Content appearing on AHI Website(s).

24

b.

CoStar’s notification shall provide (a) the URL(s) at which such

25

CoStar Content appeared; (b) the date(s) on which CoStar believes such

26

CoStar Content appeared on AHI Website(s); (c) the date(s) on which

27

CoStar obtained knowledge that such CoStar Content appeared on AHI

28
3

1

Website(s); and (d) screenshot(s) showing all or substantially all of the

2

page(s) on which the CoStar Content appeared on AHI Website(s).
c.

3

Any notice lacking these requirements set forth in paragraph

4

3(a) and 3(b) above shall not be considered proper notice requiring action by

5

AHI.
d.

6

AHI shall, within ten (10) calendar days of receiving the above-

7

described notification from CoStar, remove the CoStar Content from the

8

AHI Websites and, to the extent reasonably possible, use the notification and

9

limitation-of-service procedures described in paragraphs 8.b. and 8.c. below.

10

4.

Following the one-hundred-twenty (120) day period from the date of

11

this Order (within which AHI must incorporate or cause to be incorporated into the

12

operation of the AHI Websites the state-of-the-art photograph identification and

13

filtering technology, supplied by PicScout, pursuant to paragraph 8 below), AHI

14

shall be further enjoined from operating the AHI System and any website, system,

15

or software that is substantially similar to the AHI System unless and until AHI

16

incorporates or causes to be incorporated into the operation of such website,

17

system, or software the state-of-the-art photograph identification and filtering

18

technology as provided below in paragraph 8 below.

19

5.

To the greatest extent possible, understanding the impracticality of

20

independently reviewing each individual listing sent by a data feed, AHI shall take

21

reasonable steps to prevent third parties from submitting and uploading CoStar

22

Content (that such third parties do not own) to the AHI Websites.

23

6.

AHI shall take reasonable steps sufficient to monitor and ensure that

24

all persons within its control or employment (whether as independent contractors,

25

employees, agents, partners, or in some other capacity) comply with this

26

Permanent Injunction. Such steps shall include but are not limited to taking all

27

reasonable corrective action with respect to any individual within AHI’s control or

28
4

1

employment whom it determines is not in compliance with the terms of this

2

Permanent Injunction, which may include training, disciplining, and/or terminating

3

such individual.

4

7.

Defendants shall continue to abide by the terms of use applicable to

5

the products that Plaintiffs (including their parents, subsidiaries, or affiliates)

6

operate including, without limitation, Apartments.com, Apartmentfinder.com,

7

Land.com, and LoopNet.com.

8
9

8.

Within one-hundred-twenty (120) days from the date of this Order,

AHI shall incorporate or cause to be incorporated into the operation of the AHI

10

System the state-of-the-art photograph identification and filtering technology,

11

supplied by PicScout, which identifies CoStar Photographs. Plaintiffs shall be

12

responsible for providing PicScout with the necessary access to CoStar

13

Photographs to allow PicScout to apply the photograph identification technology

14

against photos in the AHI System. Such photograph identification and filtering

15

technology shall be based on digital fingerprinting technology unless and until a

16

different technology has been proven to be more effective at identifying CoStar

17

Photographs (if in the future any party identifies any such purportedly more

18

effective technology, the parties shall negotiate in good faith the practical

19

implementation and cost of such new technology). The photograph identification

20

and filtering technology shall operate in-line on the AHI System, which means it

21

shall complete its photograph identification and filtering simultaneously to the

22

photograph being published and/or displayed on the AHI System. Notwithstanding

23

the outer deadline of 120 days, AHI shall exercise good faith efforts to incorporate

24

or cause to be incorporated into the operation of the AHI system the photograph

25

identification and filtering technology, supplied by PicScout, as soon as it becomes

26

reasonably practicable to do so.

27

a.

AHI shall permit PicScout to operate the filtering technology to

28
5

1

achieve maximum reasonable effectiveness in preventing display of CoStar

2

Photographs on AHI Websites. AHI shall ensure that any and every

3

photograph the AHI System acquires, whether acquired from a data feed,

4

seed file, user upload, “speed post,” data harvesting, or any other source, is

5

analyzed by the filtering technology simultaneously to it being published

6

and/or displayed on the AHI System.

7

b.

Upon receipt of notification of Plaintiffs’ ownership of any

8

CoStar Photograph(s) appearing on any AHI Website(s), AHI will, as soon

9

as reasonably practical, both remove the photograph from public display and

10

notify the source of the photograph(s), if such source can be identified, of

11

Plaintiffs’ ownership and that such photographs cannot be displayed on such

12

AHI Website(s). If the source is a user of the AHI System, AHI will notify

13

the user, to the extent that such notification is possible, that the CoStar

14

Photograph(s) has or have not been published due to Plaintiffs’ ownership of

15

the CoStar Photograph(s) and that, to the extent reasonably possible, if

16

repeat acts of infringement or misappropriation are committed by the user,

17

AHI will be required to restrict the user’s access to the AHI System, as well

18

as restrict the access of any entities with which it knows the user is affiliated.

19

c.

Prima facie evidence of authorization to post CoStar

20

Photographs must be obtained from any user, when reasonably possible,

21

once a second instance of allegedly infringing or misappropriated CoStar

22

Photographs are submitted by that user after removal of and notice

23

concerning the first allegedly infringing or misappropriated CoStar

24

Photographs have been sent to that user.

25

d.

Plaintiffs and AHI expressly contemplate that Plaintiffs’ legal

26

representatives, and any individual or entity acting at their direction, may

27

access the listings, including without limitation images of properties,

28
6

1

available on the front end of the AHI System to effectuate, and to monitor

2

compliance with, the terms of this Permanent Injunction and Plaintiffs’

3

intellectual property or other legal rights. To the extent AHI restricts outside

4

access to listings, including without limitation images of properties,

5

available on the AHI System, through password protection or otherwise,

6

AHI shall provide Plaintiffs’ legal representatives, or an individual or entity

7

acting at their direction, a single password (free of charge) to access such

8

restricted parts of the AHI System to which paying or permitted users have

9

access, for purposes contemplated in this Permanent Injunction,

10

notwithstanding any AHI System term of service, term of use, or other

11

provision to the contrary. This provision does not entitle Plaintiffs or their

12

legal representatives to access the AHI System’s backend or servers.

13

9.

If any of the Defendants sell, lease, license, convey, give away, or

14

otherwise transfer or assign, any part of the source code, object code, other

15

technology (excluding generic hardware, e.g. computer servers), domain names,

16

trademarks, brands, assets, or goodwill in any way related to the AHI System, or

17

otherwise cause or allow to occur a change of control of the business, operations,

18

equity, or assets of AHI, (collectively, a “Transfer”), it/they will require, as a

19

condition of any such Transfer, that each purchaser, lessee, or other transferee or

20

assignee (collectively, a “Transferee”) (a) agree to this Court’s jurisdiction and

21

venue and fully waive and relinquish any argument that venue or jurisdiction by

22

this Court is improper or inconvenient and (b) agree to be bound by and comply

23

with the injunctive terms herein.

24

This provision shall not apply to a purchaser, lessee, or other

25

transferee or assignee (collectively, a “Brand Acquirer”) if (a) the Brand Acquirer

26

does not acquire any part of the content, databases, source code, object code, or

27

other technology related to the AHI system, but instead only acquires domain

28
7

1

names, trademark, brands and/or goodwill related to the AHI System (a “Brand

2

Acquisition”) and (b) the Defendant(s) affirm in writing in advance of the Brand

3

Acquisition that (i) Defendant(s) have made a reasonable good faith inquiry as to

4

the Brand Acquirer’s intentions for the Brand Acquisition; and (ii) based on such a

5

reasonable good faith inquiry, Defendant(s) do not know or have reason to believe

6

that Brand Acquirer is making the Brand Acquisition for the purpose of

7

disseminating property rental information, whether online or offline, residential or

8

commercial.

9

10.

Defendants further shall not engage in a Transfer or Brand

10

Acquisition with or to any person whom Defendants know or suspect is engaged

11

in, or plans to engage in, conduct that would violate the terms of this Permanent

12

Injunction.

13

11.

Should CoStar satisfy the requirements of the Notice and Cure

14

Protocol set forth in paragraphs 3(a)-(b) above, and should AHI fail to satisfy the

15

requirements of the Notice and Cure Protocol set forth in paragraph 3(d) above,

16

AHI shall be liable for damages which shall be calculated by adding (1) the sum of

17

$10,000 multiplied by the number of days past the ten-day cure period each CoStar

18

Photograph at issue is displayed on the AHI Website, and (2) the reasonable

19

attorneys’ fees and costs incurred by Plaintiffs in obtaining such damages. By way

20

of example, if Plaintiffs provide the notice required by paragraph 3 and three

21

CoStar Photographs continue to be published or displayed on the AHI System for

22

five days past the ten-day cure period, the amount of damages may be up to

23

$150,000 ($10,000 x 5 x 3), plus Plaintiffs’ reasonable attorneys’ fees and costs.

24

12.

This Court shall retain jurisdiction of this matter in law and equity for

25

purposes of enforcing and/or adjudicating claims of violations of this Judgment

26

and Permanent Injunction or the parties’ Release and Settlement Agreement. Any

27

such matters shall be raised by noticed motion. The parties irrevocably and fully

28
8

1

waive and relinquish any argument that venue or jurisdiction by the Court is

2

improper or inconvenient.
13.

3

The parties irrevocably and fully waive any and all right to appeal the

4

Judgment and Permanent Injunction, to have it vacated or set aside, to seek or

5

obtain a new trial thereon, or otherwise to attack in any way, directly or

6

collaterally, its validity or enforceability.
14.

7

Defendants shall give notice of this Judgment and Permanent

8

Injunction to each of their officers, directors, agents, servants, employees, assigns,

9

owners, alter egos, affiliates, all entities through which they conduct business,

10

representatives, successors, licensees, and all those acting in concert or

11

participation with each or any of them, to the extent such persons exist, and to

12

request adherence to the terms of this Permanent Injunction.
15.

13
14

This Permanent Injunction does not create any independent duties

other than those previously specified.
16.

15

For the purposes of clarity, the Court holds the following:

16

a.

The Court has personal jurisdiction over all Defendants; and

17

b.

Judgment is entered only against AHI. No judgment or

18

monetary damages are entered against the individual defendants, Kevin

19

Shayan and Steven Shayan.

20

17.This Permanent Injunction enjoins the conduct of Defendants wherever

21

they may be found, including, without limitation, outside of the United

22

States.

23

////

24

////

25

////

26

////

27

////

28
9

1

16.

Plaintiffs shall not be required to post any bond or security, and

2

Defendants permanently, irrevocably, and fully waive any right to request a bond

3

or any other security.

4

IT IS SO ORDERED.

5

Dated: March 27, 2017

6
7
8
9

THE HONORABLE JOSEPHINE L. STATON
UNITED STATES DISTRICT JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10