METROPOLITAN REGIONAL INFORMATION SYSTEMS, INC.
AMERICAN HOME REALTY NETWORK and JONATHAN J. CARDELLA and AMERICAN HOME REALTY NETWORK and METROPOLITAN REGIONAL INFORMATION SYSTEMS, NATIONAL ASSOCIATION OF REALTORS, and DOES 1-25
REPORT AND RECOMMENDATION
JILLYN K. SCHULZE, Magistrate Judge.
Presently pending are a Motion for Contempt filed by Plaintiff Metropolitan Regional Information Systems, Inc. (MRIS), ECF No. 92, and a Motion for Leave to File a Surreply by Defendant American Home Realty Network, Inc. (AHRN). ECF No. 113. The issues have been fully briefed and no hearing is necessary. See Local Rule 105.6.
The relevant background is set out in the Court's August 27, 2012 opinion, Metro. Reg'l Info. Sys. v. Am. Home Realty Network, Inc., 888 F.Supp.2d 691, 696-97 (D. Md. 2012), granting MRIS's Motion for Preliminary Injunction:
MRIS facilitates real estate transactions in the mid-Atlantic region by operating and maintaining an automated database consisting of compiled property listings and related informational content. To use the database, real estate brokers and agents are required to execute a subscription agreement. Subscribers agree to upload their real estate listings to the MRIS Database and to assign to MRIS the copyrights in each photograph included in those listings. Upon payment to MRIS and subject to terms and conditions, subscribers are granted access to all the real estate listings in the MRIS Database and the right to display those listings on their own websites via a licensed data feed. MRIS oversees the use and content of the listings to ensure that subscribers are complying with MRIS's rules and regulations and information quality standards. In addition to the services provided to subscribers, MRIS makes limited content available to consumers through a free website, www.homesdatabase.com.
MRIS files its claims of copyright ownership in the MRIS Database with the U.S. Copyright Office each quarter, in accord with the registration procedures applicable to automated databases. The copyright registrations for the MRIS Database list "text" and "photographs" as pre-existing material and the basis of the copyright claims. To protect its intellectual property, MRIS affixes its mark and copyright notice-i.e., "© 2012 MRIS"-to photographs in the MRIS Database.
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AHRN owns and operates the website NeighborCity.com, a national real estate search engine and provider of real estate agent ratings and rankings.... Users of the NeighborCity.com website can find nationwide real estate listings using search parameters such as geographic region and price range. If users find a real estate agent or a property that interests them, NeighborCity.com connects the user with the local agent of choice or a recommended agent for the requested property. NeighborCity.com is compensated for its agent matching and referral services if the lead turns into a sale.
AHRN has not acquired a license or permission from MRIS to reproduce, display, or otherwise use the MRIS Database. However, NeighborCity.com has displayed Maryland real estate listings containing photographs from the MRIS Database.
On March 28, 2012, MRIS filed a complaint against AHRN alleging, inter alia, direct copyright infringement against AHRN resulting from the reproduction of photographs from the MRIS Database. The Court issued a preliminary injunction in MRIS's favor. AHRN then filed a motion to clarify the injunction, and the court refashioned the injunction into its present form:
AHRN and all persons acting under its direction, control or authority are hereby preliminarily enjoined from unauthorized copying, reproduction, public display, or public distribution of MRIS's copyrighted photographs and from preparing derivative works based upon MRIS's copyrighted photographs.
ECF No. 65 at 2.
MRIS filed the instant Motion for Contempt alleging that "thousands of photographs from the MRIS Database bearing a © MRIS' notice currently are displayed on the [NeighborCity.com] website" in violation of the preliminary injunction. ECF No. 92-1 at 2. AHRN does not dispute that it displayed photographs on its website containing a "© MRIS" image, but argues that it did so ...