                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 18-3723
                       ___________________________

                     Infogroup, Inc., Delaware Corporation

                        lllllllllllllllllllllPlaintiff - Appellee

Inc. InfoUSA, Delaware Corporation; InfoUSA Marketing, Inc., Delaware corporation

                             lllllllllllllllllllllPlaintiffs

                                           v.

      DatabaseLLC, a Nevada limited-liability company, doing business as
Database101.com, doing business as Infofree.com, doing business as AtoZ Databases

                             lllllllllllllllllllllDefendant

                                    Vinod Gupta

                      lllllllllllllllllllllDefendant - Appellant

 Blake Van Gilder; Jason Dailey; Mark Puljan; Jon McCormick; John Does, 1-20

                            lllllllllllllllllllllDefendants

 DatabaseUSA.com LLC, a Nevada limited-liability company, doing business as
Database101.com, doing business as Infofree.com, doing business as AtoZ Databases

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________
                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                   ____________

                            Submitted: February 13, 2020
                               Filed: April 27, 2020
                                  ____________

Before LOKEN, BENTON, and KELLY, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       After a jury trial and post-trial orders by the district court,1 Infogroup, Inc.
received judgments against DatabaseUSA.com LLC for copyright infringement, and
Vinod Gupta for breach of contract. Having jurisdiction under 28 U.S.C. § 1291, this
court affirms.

      Gupta founded Infogroup, a company that compiles a database of business
information. In 2008, Gupta and Infogroup entered a separation agreement. Within
two years, he founded DatabaseUSA to compile a database of business information.

       In 2014, Infogroup sued DatabaseUSA for, among other claims, copyright
infringement of its 2011 database. It also sued Gupta for breach of the separation
agreement. A jury returned a verdict for Infogroup, which after post-trial orders,
awarded $11.2 million against DatabaseUSA for copyright infringement, and $10
million against Gupta for breach of the separation agreement.

       DatabaseUSA and Gupta appeal. They seek judgment as a matter of law, or in
the alternative, a new trial.


      1
        The Honorable John M. Gerrard, Chief United States District Judge for the
District of Nebraska.

                                         -2-
       This court reviews de novo a motion for judgment as a matter of law. Andreas
v. Volkswagen of Am., Inc., 336 F.3d 789, 795 (8th Cir. 2003). “Only where all of
the evidence points in one direction and is susceptible to no reasonable interpretation
supporting the jury verdict should the [denial] of a motion for judgment as a matter
of law be [reversed]. Thus, it is improper to overturn a jury verdict unless, after
giving the nonmoving party the benefit of all reasonable inferences and resolving all
conflicts in the evidence in the nonmoving party’s favor, there still exists a complete
absence of probative facts to support the conclusion reached so that no reasonable
juror could have found for the nonmoving party.” First Nat’l Bank of Omaha v.
Three Dimension Sys. Prod., Inc., 289 F.3d 542, 544 (8th Cir. 2002) (citation,
emphasis, and quotations omitted).

      This court reviews a denial of a new trial for a clear abuse of discretion.
McKnight by Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1400 (8th Cir. 1994).
“The key question is whether a new trial should have been granted to avoid a
miscarriage of justice.” Id.

                                          I.

      For the copyright-infringement decision, this court does not grant a judgment
as a matter of law or a new trial to DatabaseUSA.

      To prevail on copyright infringement, Infogroup must prove, first, “ownership
of a valid copyright,” and second, “copying of original elements of the work.”
Mulcahy v. Cheetah Learning, LLC, 386 F.3d 849, 852 (8th Cir. 2004), citing Feist
Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).

       For the first requirement, DatabaseUSA argues that Infogroup does not own a
valid copyright because its database is a compilation of facts, not the result of
creativity. As DatabaseUSA sees it, Infogroup’s copyright revives the now-

                                         -3-
discredited “sweat of the brow” theory that hard work alone merits copyright
protection. Feist Publ’ns, Inc., 499 U.S. at 353 (“‘Sweat of the brow’ courts thereby
eschewed the most fundamental axiom of copyright law—that no one may copyright
facts or ideas.”).

       “[C]opyright in a factual compilation is thin.” Id. at 349. It protects the
“selection and arrangement [of facts], so long as they are made independently by the
compiler and entail a minimal degree of creativity.” Id. at 348 (brackets added). See
also Schoolhouse, Inc. v. Anderson, 275 F.3d 726, 728-29 (8th Cir. 2002) (“As
applied to a factual compilation, copyright law protects an author’s original selection
and arrangement of facts, but the facts and ideas within the compilation are free for
the taking.”).

       A reasonable juror could have concluded that Infogroup made an independent
selection and arrangement of facts that entail a minimal degree of creativity.
Infogroup put into evidence its copyright’s Certificate of Registration from 2011,
which protected the “text, Compilation” of its database. Certificates of Registration
are “entitled to a rebuttable presumption of the validity of [the] copyright[].” Taylor
Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir. 2003), citing
17 U.S.C. § 410(c) (2002). See also Warren Publ’g, Inc. v. Microdos Data Corp.,
115 F.3d 1509, 1513 n.4 (11th Cir. 1997) (acknowledging protection for factbook “as
a whole” due to its certificate of registration). DatabaseUSA did not submit evidence
rebutting this presumption. Infogroup, according to its CEO and its group president,
merges overlapping data and purges inaccurate data (in its judgment). This process
entails a minimal degree of creativity. See Experian Info. Sols., Inc. v. Nationwide
Mktg. Servs. Inc., 893 F.3d 1176, 1185 (9th Cir. 2018) (providing copyright
protection where “employees choose from multiple and sometimes conflicting
sources, and they use their judgment in selecting which names and addresses to
include in the database”).


                                         -4-
       DatabaseUSA counters that Infogroup did not establish that its database
entailed creativity because it did not put into evidence its entire database.
Infogroup’s database might have been additional evidence about the exercise of
creativity, but it was not necessary. A reasonable juror, based on the evidence at trial,
could have found Infogroup owned a valid copyright.

       For the second requirement, a reasonable juror could have concluded that
DatabaseUSA copied the original elements of Infogroup’s work. “Copying may be
established (1) by direct evidence or (2) by showing that the defendants had access
to the copyrighted materials and showing that substantial similarity of ideas and
expression existed between the alleged infringing materials and the copyrighted
materials.” Rottlund Co. v. Pinnacle Corp., 452 F.3d 726, 731 (8th Cir. 2006). For
factual compilations, it takes “virtually extensive verbatim copying to constitute
infringement.” Schoolhouse, 275 F.3d at 729 (citations and quotation omitted).

       Infogroup presented direct evidence for the jury’s finding that DatabaseUSA
copied. First, a salesperson who worked for Infogroup and DatabaseUSA testified
that the top executives at DatabaseUSA told him that “[n]othing has changed”
between Infogroup’s data and DatabaseUSA’s data. See Rottlund, 452 F.3d at 732
(listing party admissions as direct evidence). Second, DatabaseUSA’s database
contained Infogroup’s “seed data”—fake data in Infogroup’s database to detect
copying. See id. (listing common errors as direct evidence).

         Third, the district court gave a spoliation instruction that the jury could “infer
. . . that the contents of the database were unfavorable” to DatabaseUSA if it found
“that DatabaseUSA destroyed the database knowing that evidence would be relevant
to an issue being litigated in this case.” This instruction implemented the district
court’s sanction of DatabaseUSA for intentionally destroying its 2014 database after
DatabaseUSA reviewed it to oppose Infogroup’s preliminary injunction in this case.
Cf. id. (listing party admissions as direct evidence). Spoliation, with the other

                                           -5-
evidence, was sufficient to prove copying. See Swift Transp. Co. of Ariz., LLC v.
Angulo, 716 F.3d 1127, 1134 (8th Cir. 2013) (holding that spoliation of tracking data
could, with other evidence, support reasonable inference defendant’s truck at scene).

       Because of spoliation, DatabaseUSA’s two arguments against copying fail.
One, DatabaseUSA believes Infogroup needed to submit its database for a side-by-
side comparison. But here, DatabaseUSA’s spoliation prevented a comparison. Cf.
General Universal Sys., Inc. v. Lee, 379 F.3d 131, 142 (5th Cir. 2004) (requiring
side-by-side comparison where defendant did not destroy computer program);
Antonick v. Elec. Arts, Inc., 841 F.3d 1062, 1066 (9th Cir. 2016) (same, for source
code). Relatedly, DatabaseUSA argues that—regardless whether its database was
available—Infogroup needed to submit its entire November 2011 database. But this
argument carries no weight due to DatabaseUSA’s spoliation: Infogroup’s entire
database could not have been compared with anything. Two, DatabaseUSA contends
that Infogroup showed copying of only its facts in DatabaseUSA’s database. The
spoliation instruction, with the other evidence, permitted the jury to infer that
DatabaseUSA’s database contained the original elements from Infogroup’s database,
not just the facts. See Schoolhouse, 275 F.3d at 728-29 (stating standard).

       Finally, for the copyright infringement claim, this court affirms the $11.2
million in damages. “[A] copyright holder is entitled to recover his actual damages
as well as ‘any profits of the infringer that are attributable to the infringement and are
not taken into account in computing actual damages.’” Andreas v. Volkswagen of
Am., Inc., 336 F.3d 789, 795 (8th Cir. 2003), quoting 17 U.S.C. § 504(b) (2000).

       The district court trimmed the jury’s award from $39.6 million to $11.2 million.
The $39.6 million, according to Infogroup’s CFO, was DatabaseUSA’s revenue from
2011 to 2018, after deducting overlap and commissions. The court then subtracted
the revenues after 2014, the last time Infogroup provided evidence of infringement.


                                           -6-
       DatabaseUSA attacks the award as first, relying on overlapping data from
databases after 2011, and second, including revenue from a separate database. These
arguments are misplaced. “In establishing the infringer’s profits, the copyright owner
is required to present proof only of the infringer’s gross revenue, and the infringer is
required to prove his or her deductible expenses and the elements of profit
attributable to factors other than the copyrighted work.” 17 U.S.C. § 504(b)
(emphasis added). Infogroup presented evidence (verified by DatabaseUSA) of
DatabaseUSA’s gross revenue from the sales divisions that used the infringing
database, and evidence of two deductions. At trial, DatabaseUSA did not present any
evidence that its gross revenue resulted from factors unrelated to infringement.

      This court affirms the award for copyright infringement.

                                          II.

      Leaving Infogroup, Gupta signed a separation agreement with non-
disparagement, confidentiality, and non-compete clauses. In return, he received $10
million, indemnification protections, and a year of health insurance coverage.

        Infogroup proved breach of the agreement. For non-disparagement, it
submitted evidence Gupta told a reporter, “The problem with Infogroup is they cannot
compete in the marketplace. They have no leadership, no brains and their product is
obsolete.” Gupta argues that these comments, made while DatabaseUSA was in
litigation with Infogroup, fell under the non-disparagement clause’s exception for
“comments made during legal or administrative investigations or proceedings.” A
juror could reasonably interpret the exception to apply to statements “during” actual
legal “investigations or proceedings”—that is, related to investigations or
proceedings—but not to comments to a reporter while litigation is ongoing. It was
reasonable, therefore, to conclude that Gupta’s comments violated the non-
disparagement clause.

                                          -7-
      For breach of the confidentiality clause, Infogroup submitted evidence that
Gupta told his salesman he was using Infogroup’s customer lists, and evidence that
he used its trademarks. Gupta asserts that Infogroup’s customer lists and trademarks
were not protected by the confidentiality clause—a term the jury found Gupta
breached. The clause prohibited “use” of “highly sensitive and proprietary
information regarding [Infogroup’s] . . . intellectual property (including, but not
limited to . . . trademarks) [and] customers.” The jury reasonably concluded that
Gupta’s acts violated this clause.

      Finally, Gupta attacks the $10 million award because the separation agreement
also had a non-compete clause, which Gupta did not violate. As he sees it, $10
million in damages is not sufficiently related to the breach because the non-compete
clause must have some value.

       The district court instructed the jury that “the measure of damages for a breach
of a contract claim is an amount that would place Infogroup in as good a position as
it would have enjoyed if the contract had been performed.” The parties agree this
instruction was proper. See Bachman v. Easy Parking of Am., Inc., 562 N.W.2d
369, 373 (Neb. 1997) (“The proper measure of damages in a contract action is the
losses sustained by reason of a breach.”). See also Sack Bros. v. Great Plains Coop.,
Inc., 616 N.W.2d 796, 809 (Neb. 2000) (there must be “a causal relationship between
the damages asserted and the breach relied upon”). Neither party sought an
instruction for rescission.

      The jury had a sufficient basis for its damages amount. See Lange Indus., Inc..
v. Hallam Grain Co., 507 N.W.2d 465, 478 (Neb. 1993). Although Infogroup
submitted conflicting amounts, a reasonable juror could have credited Infogroup’s
CFO’s testimony that $10 million would make Infogroup whole. Gupta received
more than $10 million, including the indemnification and health insurance
protections.

                                         -8-
         The district court properly denied Gupta a judgment as a matter of law or a new
trial.

                                      *******

         The judgment of the district court is affirmed.
                        ______________________________




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