By Thomas Long, J.D.
Real estate photographers failed to provide evidence that software provider CoreLogic, Inc., removed copyright management information (CMI) from licensed photos posted to listing services by real estate agents using CoreLogic’s software with the requisite mental state for liability under the Digital Millennium Copyright Act (DMCA), the U. S. Court of Appeals in San Francisco has held. The photographers did not affirmatively show that CoreLogic knew that its software’s failure to retain metadata in the photographers’ digital image files that contained invisible watermarks would "induce, enable, facilitate, or conceal" copyright infringement, as required for liability under 17 U.S.C. §1202(b). There was no evidence from which one could infer that future infringement was likely to occur as a result of the removal or alteration of copyright management information. The Ninth Circuit affirmed a decision of the federal district court in San Diego, which ruled on summary judgment that CoreLogic could not be liable for violating the DMCA due to the photographers’ failure to meet the "mental state" requirement of Section 1202(b) (Stevens v. CoreLogic, Inc., June 20, 2018, Berzon, M.).
CoreLogic developed and provided software to multiple listing services (MLSs). Real estate agents joined MLSs and used CoreLogic’s software to upload listings, including property descriptions and photos. Plaintiffs Robert Stevens and Steven Vandel were professional photographers who took pictures of houses for sale and licensed the photos to real estate agents to upload to an MLS. The photographers alleged that their cameras stored CMI in the form of invisible digital watermarks stored in metadata in the photos’ data files, although there was evidence that not every camera they used could perform this function. The plaintiffs retained their copyrights over the photos. CoreLogic’s software platform used a library system that allegedly did not retain certain types of metadata by default, including the photographers’ CMI. There also was evidence that metadata in digital photo files could be removed inadvertently by several means throughout the file-handling process, such as when a file was manipulated by resizing or cropping in photo editing software, by emailing the photo using certain programs, or by opening an image on a mobile device using certain operating systems.
In addition to providing MLS software, CoreLogic operated a program called Partner InfoNet, which allowed MLSs to license their aggregated listing data to mortgage lenders and servicers. CoreLogic used photos taken and owned by the photographers on Partner InfoNet products.
The photographers alleged that CoreLogic removed the metadata containing invisible digital watermarks from their photos, in violation of 17 U.S.C. §1202(b)(1), and distributed them knowing that CMI had been removed, in violation of 17 U.S.C. §1202(b)(3). There was no allegation that CoreLogic or its software removed visible CMI, or that the software was even capable of doing so. CoreLogic moved for summary judgment, and the district court granted the motion.
Knowledge requirement. Section 1202(b)(1) prohibited the intentional removal or alteration of CMI from copyrighted works. Section 1202(b)(3) prohibited the distribution of works with altered or removed CMI with the knowledge that the alteration or removal was done without the authority of the copyright owner and that the distribution was likely to lead to infringement. The Ninth Circuit noted that both provisions required that the defendant possess the mental state of knowing, or having a reasonable basis to know, that its actions "will induce, enable, facilitate, or conceal" infringement.
The photographers did not offer any evidence to satisfy that mental state requirement, the court said. They argued that, because one method of identifying an infringing photograph had been impaired, someone might be able to use their photographs undetected. This did not constitute evidence of knowledge and simply identified a general possibility that existed whenever CMI was removed. This general or universal possibility was not sufficient to establish the requisite mental state, in the court’s view. The court held that "a plaintiff bringing a Section 1202(b) claim must make an affirmative showing, such as by demonstrating a past ‘pattern of conduct’ or ‘modus operandi’, that the defendant was aware of the probable future impact of its actions."
Failure to make affirmative showing. The photographers did not offer any specific evidence that removal of CMI metadata from their real estate photos will impair their policing of infringement, such as allegations of a pattern of conduct or modus operandi involving the tracking of metadata to look for infringing uses. In the court’s opinion, the evidence in the record cut against any inference that the CMI metadata was of any practical significance to the photographers in enforcing the copyrights in their images. There was no indication that they had ever used the metadata to prevent or detect infringement, or how they would do so. Vandel testified that he had never looked at any metadata on any photo in an MLS system. Stevens testified that he had never tried to download a photo from an MLS listing, and he stated that he was unaware that metadata could be obtained from a photo being displayed on the Internet.
In addition, the photographers offered no evidence indicating the CoreLogic’s distribution of real estate photos ever induced, enabled, facilitated, or concealed any act of infringement by anyone, let alone a pattern of infringement that was likely to recur. Moreover, the court noted, a party that wished to escape detection of its unauthorized use of a copyrighted photo could itself simply remove the CMI metadata, rendering it useless in the policing of the images’ copyrights. Accordingly, CoreLogic was not liable for violating Section 1202(b), the court concluded.
The case is No. 16-56089.
Attorneys: Kirk B. Hulett (Hulett Harper Stewart LLP) for Robert Stevens and Steven Vandel. Daralyn Jeannine Durie (Durie Tangri LLP) for CoreLogic, Inc.
Companies: CoreLogic, Inc.
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