Stevens v. CoreLogic is a copyright case recently decided in the Ninth Circuit Court of Appeals. In the case, several real estate photographers allege that CoreLogic, which provides a service to real estate brokers by providing pictures of homes that are for sale, removed the metadata from their photographs which helped to identify each photographer and the year of creation. Plaintiffs argue that such removal was a violation of the Digital Millennium Copyright Act (DMCA).
The DMCA prohibits the removal of information that identifies the author of a work. As evidence that CoreLogic should pay dearly, the artists pointed to the fact that the automated image processing program at CoreLogic removed the metadata associated with the photographers’ pictures.
On its face, it sounds like a logical, realistic claim. The raison d’être of metadata is to make it possible to search for works and their authors, and CoreLogic removed it. That’s exactly the kind of thing that the DMCA is supposed to protect against and prohibit.
However, one of the things I had not realized, and one of the things the lower courts found and the Ninth Circuit confirmed, is that the statute requires that it be an intentional infringement. The party that removes the metadata would have to know what they were doing — or have reasonable grounds to be aware that removing it will induce, enable, facilitate, or conceal any copyright infringement.
The court found that CoreLogic removes metadata for the purpose of reducing the size of the photograph, so it can download more quickly and be stored with less memory. The metadata was being removed during an automated process.
The photographers didn’t offer any evidence that satisfied the mental state required for intentionally acting in a way that would induce copyright infringement. What they essentially said was, “CoreLogic might be causing copyright infringement because we can’t track who else is using our pictures.” Remember, CoreLogic itself was authorized to use the photos.
The court found that argument speculative; the plaintiffs were unable to offer a single instance of it actually happening. Another important factor was that CoreLogic did not remove the visible part or copyright credit. To the naked eye, it still had a watermark on it, and it still had copyright credit. That calls into question whether CoreLogic’s alleged infringement was as intentional as the plaintiffs claimed.
To some extent, it seems that plaintiffs lost because they were not sufficiently prepared for their depositions. During examination, one of the plaintiffs admitted, “I didn’t even know there was metadata protecting my photographs. I just know I wasn’t being credited.”
In any event, the court said that a plaintiff using the DMCA must make an affirmative showing, such as by demonstration of a past pattern of conduct, that the defendant was aware of the probable future impact of their actions. The fact that the defendants learned that they had removed the metadata, and they had been told they were doing it, and were still doing it, was not enough to show a pattern of conduct. The court held that a pattern of conduct is whether they knew that the removal of that metadata was causing other infringements. That appears to be a very difficult thing for a plaintiff to show. In my view, this requirement eviscerates the protections one would expect to flow from the DMCA.
The plaintiffs’ case was also hurt when the court denied their request to compel for discovery of some 600 CoreLogic emails and text messages was denied. They argued that such documents might reveal that CoreLogic knew its software was continuing to remove the metadata. However, the court found such argument to be irrelevant as to whether the software would “induce, enable, facilitate or conceal any act of copyright infringement.” Perhaps plaintiffs’ motion to compel discovery should have framed in that way the reason for their document demands.
As for a practical lesson: we all need to be prepared for depositions and discovery. Plaintiffs (before being deposed and giving testimony) should be aware of what their attorneys are arguing on their behalf, and attorneys should take care when asking for discovery.
