Robert Stevens; Steven Vandel, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
v.
CoreLogic, Inc., a Delaware Corporation, Defendant-Appellee.
Argued
and Submitted November 6, 2017 Pasadena, California
Appeal
from the United States District Court for the Southern
District of California D.C. No. 3:14-cv-01158-BAS-JLB Cynthia
A. Bashant, District Judge, Presiding
Darren
Quinn (argued), Law Offices of Darren J. Quinn, Del Mar,
California; Kirk B. Hulett, Hulett Harper Stewart LLP, San
Diego, California; Joel B. Rothman, Schneider Intellectual
Property Law Group PLLC, Boca Raton, Florida; for
Plaintiffs-Appellants.
Daralyn Jeannine Durie (argued), Joseph C. Gratz, and Michael
A. Feldman, Durie Tangri LLP, San Francisco, California; for
Defendant-Appellee.
Before: A. Wallace Tashima and Marsha S. Berzon, Circuit
Judges, and Robert E. Payne, [*] District Judge.
SUMMARY[**]
Copyright
Law
The
panel affirmed the district court's grant of summary
judgment in favor of CoreLogic, Inc., on professional real
estate photographers' claims that CoreLogic removed
copyright management information from their photographs and
distributed their photographs with the copyright management
information removed, in violation of 17 U.S.C. §
1202(b)(1)-(3), a part of the Digital Millennium Copyright
Act.
The
photographers alleged that CoreLogic's Multiple Listing
Services software removed copyright management information
metadata from their photographs. The panel held that §
1202(b) requires a showing that the defendant knew the
prohibited act would "induce, enable, facilitate, or
conceal" infringement. The panel concluded that the
photographers did not offer evidence to satisfy this mental
state requirement because they did not provide evidence from
which one could infer that future infringement was likely,
albeit not certain, to occur as a result of the removal or
alteration of copyright management information.
The
panel affirmed the district court's rulings regarding
discovery and costs.
OPINION
BERZON, Circuit Judge
Residential
real estate sales today depend largely on online sites
displaying properties for sale. Plaintiffs Robert Stevens and
Steven Vandel ("the Photographers") are
professional real estate photographers who take photographs
of listed properties and license them to real estate agents.
The real estate agents, in turn, upload such photographs to
Multiple Listing Services ("MLS") - computerized
databases of listed properties - using Defendant
CoreLogic's software.
In this
action against CoreLogic, the Photographers allege that
CoreLogic removed copyright management information from their
photographs and distributed their photographs with the
copyright management information removed, in violation of 17
U.S.C. § 1202(b)(1)-(3). We affirm the grant of summary
judgment in favor of CoreLogic.
FACTS
AND PROCEEDINGS BELOW
A.
Metadata
Stevens
and Vandel are hired by real estate agents to take digital
photographs of houses for sale. The Photographers retain the
copyright in those photographs and license them to the
agents. Like most digital photographs, at least some of
Stevens' and Vandel's photographs contain metadata -
i.e., data about the image file itself. Metadata is
not visible on the face of the image. Rather, it is either
embedded in the digital file or stored outside the image
file, such as in a "sidecar" file, and can be
viewed using computer programs.
Some
metadata is generated automatically by cameras. The
Exchangeable Image File Format ("EXIF") is used by
virtually all digital cameras to store information about the
settings used to capture a digital image. EXIF information
can include the make, model, and serial number of the camera
taking the photograph; the shutter speed; the aperture
settings; light sensitivity; the focal length of the lens;
and even, in some cases, the location at which the photo was
captured. Essentially, EXIF metadata provides information
about when the image was taken and under what technical
conditions.
Other
metadata may be added manually, either by programming the
camera or by adding information after taking the picture,
using photo editing software. Such metadata is often stored
in IPTC format, named for the International Press
Telecommunications Council, which developed metadata
standards to facilitate the exchange of news. IPTC metadata
can include, for example, the title of the image, a caption
or description, keywords, information about the photographer,
and copyright restrictions. It may be used to check copyright
information, to sort images, and to provide accurate search
results in an image database or search engine. A small number
of fields such as Author/Creator, Copyright, and
Caption/Description exist in both EXIF and IPTC formats.
Copyright
law restricts the removal or alteration of copyright
management information ("CMI") - information such
as the title, the author, the copyright owner, the terms and
conditions for use of the work, and other identifying
information set forth in a copyright notice or conveyed in
connection with the work. See 17 U.S.C. §
1202(b)-(c). Both EXIF and IPTC metadata can contain
"copyright management information."
B.
CoreLogic Software
CoreLogic
is a California-based corporation that develops and provides
software to Multiple Listing Services. Known as one of the
"Big 3" real estate software vendors nationally,
CoreLogic currently markets, or has previously marketed,
several MLS software platforms, including Matrix, InnoVia,
Fusion, MLXchange, Tempo 4, and Tempo 5. The Photographers
allege that CoreLogic's software removed CMI metadata
from their photographs, in violation of 17 U.S.C. §
1202(b).
Because
image files can be very large, CoreLogic's MLS software
resizes or "downsamples" images. Downsampling
entails creating and saving a copy of an uploaded image in a
smaller number of pixels and deleting the original image; the
process reduces storage size, facilitates computer display,
and helps images load faster on web pages.
The
image processing aspect of CoreLogic's software was not
developed by CoreLogic entirely on its own. Like virtually
all software, CoreLogic's software incorporated
"libraries" - pre-written code that can be used by
a computer program and that enables software to develop in a
modular fashion. These libraries are unable to read EXIF data
from image files or to write EXIF data to image files. Thus,
when images are copied or resized using the code from these
preexisting libraries, metadata attached to those images is
not retained.[1]
The
Photographers[2] filed this action in May 2014.
Significantly, the dispute is limited to metadata. The
Photographers do not allege that CoreLogic's software
removed visible CMI, such as digital watermarks,
from their photographs, and indeed, CoreLogic's software
does not detect, recognize, or remove visible CMI. Cf.
Murphy v. Millennium Radio Grp. LLC, 650 F.3d
295, 305 (3d Cir. 2011) (imposing liability on a defendant
who cropped out the photographer's name from the
"gutter" copyright credit before posting a
photograph online).
After
receiving the Photographers' initial complaint, CoreLogic
modified its software to ensure that EXIF metadata is copied
and restored to images processed by CoreLogic's MLS
software. These modifications were made within a few months
of receiving the initial complaint, although testing and
installation of the revised version on all MLSs using
CoreLogic software took several more months. ...