Metropolitan News-Enterprise


Thursday, June 21, 2018


Page 3


Ninth Circuit Clarifies DMCA’s Restriction Against Metadata Removal


By a MetNews Staff Writer


A claim that a defendant violated the Digital Millennium Copyright Act’s provision against removal of copyright management metadata must include a showing that the removal of the metadata made future infringement more likely, a panel of the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The unanimous opinion, penned by Circuit Judge Marsha S. Berzon, upholds the granting by U.S. District Judge Cynthia A. Bashant of the Southern District of California of the defendant’s motion for summary judgment.

The defendant in the case is CoreLogic, which publishes a software package that optimizes digital images of real estate listings for upload and display in online property databases. In resizing the images, the software was removing the metadata, hidden information within a digital image file that includes copyright information such as the author’s name and the date the picture was taken.

The plaintiffs, Robert Stevens and Steven Vandel, were photographers who had licensed their real estate pictures to CoreLogic. They said CoreLogic’s software violated a Digital Millennium Copyright Act (“DMCA”) provision preventing the removal of metadata.

CoreLogic’s summary judgment motion was granted because plaintiffs failed to show that the defendant knew the removal of metadata was likely to cause a future copyright violation.

Knowledge Element

The language of the DMCA provision preventing the removal of metadata reads, in part:

“No person shall, without the authority of the copyright owner or the law…intentionally remove or alter and copyright management information…knowing, or…having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any” copyright.

The plaintiffs argued that, because the metadata with copyright management information had been removed, it made it possible for someone to use their photographs without getting caught. The court disagreed with this generic approach.

Berzon acknowledged that plaintiffs do not have to show that any infringement has already taken place, but rather only that the defendant is familiar with an increased likelihood from the metadata removal whereby someone is likely to infringe the copyright. She continued:

“Applying that concept here, we hold that a plaintiff bringing a…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 Show

Here, the plaintiffs did not even attempt to show that CoreLogic displayed a pattern of conduct or modus operandi whereby they would have known that metadata removal would increase the likelihood of copyright infringement.

The memorandum opinion even mentions the plaintiffs’ own testimony that they had no familiarity with copyright management information metadata. It reads:

“The Photographers have not, for example, averred that they have ever used CMI metadata to prevent or detect copyright infringement, much less how they would do so…The testimony of both Stevens and Vandel undermines any ostensible relationship between the removal of CMI metadata and their policing of infringement.”

A Common Issue

For its part, CoreLogic made changes to its software in the months after receiving the plaintiffs’ complaint to prevent the image processing from removing the metadata. Berzon also mentioned in a footnote that the company has only received one DMCA takedown notice since starting to use their software, and that it was not evident that that instance had anything to do with metadata.

The opinion also indicates that many image processing websites and software fail to retain metadata. It also points out that CoreLogic uses licensed software libraries for much of its software’s functionality. According to the opinion, software libraries are universally used to provide functionality to a product like CoreLogic’s software but are written by other companies and may not be fully under a particular company’s control.

The case is Stevens v. CoreLogic, Inc., 16-56089.


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