Software Removing Metadata Not Enough Showing to “Conceal or Induce” Copyright Infringement

copyright DMCA technology

Technology is meant to make things easier or improve conditions in society.  However, sometimes technology, in the form of software, can sometimes do errant things that can create issues later.  So is the case with Stevens v. CoreLogic, Inc.,[1] decided by the Court of Appeals for the Ninth Circuit on June 20, 2018.  The Ninth Circuit held that use of photographs without the proper metadata attached did not constitute copyright infringement because the knowledge requirement was not satisfied for liability under the Digital Millennium Copyright Act (DMCA).

The facts are as follows.

Robert Stevens and Steven Vandel are photographers hired by real estate agents to photograph prospective homes in preparation for sale.  Copyrights are held by the photographers and licensed to the agents.  Because the photographs are digital, they contain metadata, which is defined as information about the item’s contents.  In the context of digital photographs, data is embedded into the digital file or stored in a sidecar file.  Either method is viewable by means of a separate computer software program.  For cameras, there are two types of metadata.  First, Exchangeable Image File Format (EXIF) is used in all digital cameras to store setting information when capturing an image.  This includes make, model, shutter speed, aperture settings, light sensitivity, focal length, and location of the photo.  This is the technical data of the image being captured by the camera.  Second, there is the International Press Telecommunications Council (IPTC) format, which is an international standard for photo editing, and includes title, caption or description, keywords, photographer information, and, if any, copyright restrictions.

17 U.S.C. §1202(b) and (c) of the Copyright Act prohibit removal or alteration of this copyright management information (CMI).  CoreLogic is a software maker based in California, which develops software programs for the Multiple Listing Services, the listing of real estate properties nationwide which all real estate agents utilize in the transactions of real properties.  In the process of downsampling, or resizing of images, plaintiffs argued that CoreLogic’s software removed the CMI from their photographs.  This is because the software used libraries, or pre-compiled code that enables modular formatting.  Because the libraries cannot read or write the EXIF data, the EXIF data was not attached to the photograph images.  Since EXIF data is not seen on the image, the plaintiff’s suit did not allege removal of visible CMI, like digital watermarks.

Upon receipt of the complaint, CoreLogic actually modified its software to ensure that future images would retain the EXIF data, and restored former EXIF data to existing images that were already processed.  The plaintiffs’ alleged, however, that IPTC data remains removed from their images despite the modification efforts by CoreLogic.

The Ninth Circuit panel, composed of Senior Judge Tashima, and Judges Berzon and Payne, with Judge Berzon writing for the court, first noted the scienter requirement in the DMCA statute at-issue.

17 U.S.C. §1202(b) reads:

(b) no person shall, without the authority of the copyright owner or the law –

(1) intentionally remove or alter any copyright management information,

(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or

(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law,

knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

Judge Berzon wrote that the plaintiffs did not offer any evidence satisfying the mental state requirement (i.e., knowingly).  She noted that the just because a third party might use their photographs undetected without the metadata attached does not equate to affirmative evidence.  The mental state requirement §1202(b) requires more than a general allegation of infringement, and requires specific application of infringement rather than a mere generic allegation of the possibility of infringement.  Further, she wrote:

[W]e hold that a plaintiff 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 action . . . . [T]he plaintiff must provide evidence from which one can infer that future infringement is likely, albeit not certain, to occur as a result of the removal or alteration of CMI.[2]

Judge Berzon noted some other troubling facts about the case which would weigh against infringement.  First, the photographers testified they never actually “looked at the metadata information on any photograph on the MLS system.”[3]  Second, the plaintiffs did not introduce evidence that CoreLogic distributed any photograph to “induce, enable, facilitate, or conceal” infringement.  Third, there was no instance that removal of the CMI “induced, enabled, facilitated, or concealed” infringement.

As a result, the panel affirmed the district court finding that CoreLogic did not commit infringement under §1202(b).

The case is a straightforward case, instructive in that the plaintiff must demonstrate copyright infringement through actual evidence.  The record was absent, in part, because CoreLogic probably did not intend to commit copyright infringement, especially given the factual evidence that it tried to mitigate its software’s removal of the CMI after receiving the initial complaint.  CoreLogic did not act like an infringer and that is reflected in the opinion.

[1] ___F.3d___ (9th Cir. 2018) (slip op.), aff’g 194 F. Supp. 3d 1046 (S.D. Cal. 2016).

[2] Stevens, supra (slip op. at 11, 13).

[3] Id. (slip op. at 14).