Stevens v. CoreLogic, Inc.

          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. ...