NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREG YOUNG PUBLISHING, INC., a corporation,
Plaintiff

- Appellant,

v. ZAZZLE, INC., a California corporation; DOES, 1

- 10,
Defendants

- Appellees. No. 18

- 55522
D.C. No. 2:16

- cv - 04587

- SVW

- KS

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding Argued and Submitted November 6, 2019

Pasadena, California Before: MURGUIA and HURWITZ, Circuit Judges, and GUIROLA, ** District Judge. Greg Young Publishing, Inc. ( “Young” ) brought this copyright

- infringement
action a gainst Zazzle, Inc. (“Zazzle”) after discover ing its copyrighted images for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Louis Guirola, Jr., United States District Judge for the Southern District of Mississippi, sitting by designation. 

# FILED

NOV 20 2019
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

sale on items on Zazzle’s website. Before trial, Zazzle conceded infringement as to the thirty

- five images remaining at issue, contesting only damages and whether infringement was willful. The jury awarded Young $460,800 in statutory damages ; in doing so , the jury awarded over $30,000 for five of the works, nece s sarily f inding willful infringement as to those works

. See 17 U.S.C. § 504(c). The district court reduced the award by $109,700, finding insufficient evidence of willful infringement

. The court also (1) entered, but later vacated, a permanent injunction, (2) denied Young’s motion for attorney’s fees, and (3) awarded costs to both parties. We have jur isdiction over Young’s appeal under 28 U.S.C. § 1291 . We affirm in
part , reverse in part , and remand

. 1. Recklessness can constitute w illful infringement , and can be established by an infringer’s knowing reliance on obviously insufficient oversight mechanisms.
See Unicolors, Inc. v. Urban Outfitters, Inc. , 853 F.3d 980, 992 (9th Cir. 2017) ;
Friedman v. Live Nation Merch

. , Inc. , 833 F.3d 1180, 1186

– 87 (9th Cir. 2016).
Zazzle never deviated from , or improved, its oversight system throughout the two

year period at issue, despite repeated notice of that policy’s ineffectiveness. Zazzle “knew it needed to take special care with respect to [Young’s] images,” Friedman , 833 F.3d at 1187, but never gave its content

- management team a catalogue of those images provided by Young

. Even after Young provided the catalogue, Zazzle continued to sell products bearing each of the w orks for which the jury found willful3

infringement. Zazzle also relied on a user - certi fication process it knew produced
false certifications and took no action to remove a user who had marketed more than 2,000 infringing products

. A reasonable jury could find willful ness on this evidence
and we therefore remand for entry of judgment consis tent with the jury verdict

. 2. The district court did not abuse its discretion in vacating the permanent injunction. See Ariz. Dream Act Coal. v. Brewer , 855 F.3d 957, 965 (9th Cir. 2017) (stating standard of review) ; see also Liberty Mut. Ins. Co. v. E

. E

. O

. C

. , 691 F.2d 438, 441 (9th Cir. 1982) ( “The law in this circuit is that errors of law are cognizable under Rule 60(b).” (citing Gila River Ranch, Inc. v. United States , 368 F.2d 354, 356 (9th Cir. 1966)))

. To o btain injunctive relief, Young was r equired to demonstrate “a likelihood of irreparable harm

. ” Flexible Lifeline Sys., Inc. v. Precision Lift, Inc. , 654 F.3d 989, 998 (9th Cir. 2011) (per curiam)

. The district court reasonably found Young’s assertions of irreparable harm grounded “in plati tudes rather than
evidence.” See Herb Reed Enters., LLC v. Fla. Entm’t Mgmt., Inc. , 736 F.3d 1239, 1250 (9th Cir. 2013). 1

1 Young’s motions for judicial notice concerning alleged cont inued infringement are denied. See Bingham v. Holder , 637 F.3d 1040, 1045 n.3 (9th Cir. 2011) (holding that “[ t ] he content of particular websites on a specified date . . . is not ‘capable of accurate and ready determination by resort to sources whose
accu racy cannot reasonably be questioned.’” ) (quoting Fed. R. Evid. 201 (1974) (amended Dec. 2011) )

. On remand, however, the district court is free to consider “other relevant events that may have intervened.” Lyng v. Nw. Indian Cemetery Protective Ass’n , 485 U.S. 439, 458 (1988)

.4

3. The district court did not abuse its discretion in denying Young’s motion for attorney’s fees

. See Perfect 10, Inc. v. Giganews, Inc. , 847 F.3d 657, 665 (9th Cir. 2017) (stating standard of review)

. Zazzle conceded infringement of the works considered by the jury, and Young’s ultimate recovery was only about 16% of the damages sought at trial

. Zazzle obtained summary judgment on eight works

. Zazzle also defeated a summary judgment motion on its Digital Millennium Copyright Act
defense. 2
4. The district court did not err in awarding Zazzle costs pursuant to Rule 68.
Zazzle’s final offer of judgment of $525,000, inclusive of attorney’s fees, is more favorable than Young ’s net recovery , even after the jury’s willfulness finding is
reinstated

. 3 See United States v. Trident Sea foods Corp. , 92 F.3d 855, 859 (9th Cir. 1996).
AFFIRMED IN PART , REVERSED IN PART , AND REMANDED

. Each party shall bear its own costs

. 4

2 In light of our reinstatement of the jury award

— and Young’s consequent increased degree of success on the merits

— our decision today is without prejudice to Young seeking reconsiderati on of its fee application on remand.

3 If the district court elects to award fees to Young, it can of course revisit the Rule 68 issue in light of Young’s ultimate recovery.

4 Zazzle ’s motion to strike portions of Young ’s reply brief is denied

.