Stevens v. Corelogic, Inc.

• Decision Date: 20 June 2018
• Docket Number: No. 16-56089,16-56089
• Citation: 899 F.3d 666
• Parties: Robert STEVENS; Steven Vandel, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. CORELOGIC, INC., a Delaware Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

899 F.3d 666

Robert STEVENS; Steven Vandel, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,

v.CORELOGIC, INC., a Delaware Corporation, Defendant-Appellee.

No. 16-56089

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2017, Pasadena, California

Filed June 20, 2018

Amended August 6, 2018

Darren J. 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 Rothman 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.

ORDER AND AMENDED OPINION

The panel has unanimously voted to deny Appellants’ petition for panel rehearing. Judge Berzon has voted to deny the petition for rehearing en banc. Judge Payne and Judge Tashima recommend denial of the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing is denied and the petition for rehearing en banc is rejected.

The opinion is amended as follows: On page 11 of the slip opinion, "or had reasonable grounds to be aware" is inserted after "that the defendant was aware."

Appellants’ motion to take judicial notice is denied as moot.

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 pre-existing libraries, metadata attached to those images is not retained.¹

The Photographers² 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. The Photographers contend that, even after these changes, CoreLogic software continues to remove IPTC metadata.

In addition to providing MLS software — which, again, real estate agents use to share information about properties with other agents — CoreLogic also operates the Partner InfoNet program, which allows MLSs to license their aggregated real estate listing data to mortgage lenders and servicers, in exchange for a share of the licensees’ revenue. CoreLogic used photographs taken and owned by the Photographers on Partner InfoNet products.

After the discovery deadline, but before all discovery disputes were resolved, Core Logic filed a motion for summary judgment. The district court granted summary judgment in favor of CoreLogic and denied as moot the Photographers’ motion to compel the production of additional documents.

After entry of judgment, CoreLogic filed a Bill of Costs, to which the Photographers objected. The district court denied the Photographers’ motion to re-tax costs with respect to witness fees for CoreLogic corporate employees. This timely appeal followed.

DISCUSSION

A. Violation of 17 U.S.C. § 1202(b)

The Photographers allege that CoreLogic’s software removed CMI metadata, in violation of 17 U.S.C. § 1202(b)(1), and that CoreLogic distributed images knowing that copyright management information was removed, in violation of 17 U.S.C. § 1202(b)(3). Reviewing de novo the district court’s decision to grant summary judgment to CoreLogic, see Perfect 10, Inc. v. Giganews, Inc ., 847 F.3d 657, 665 (9th Cir. 2017), we affirm the grant of summary judgment.

1. Section 1202(b) Requires an Affirmative Showing That the Defendant Knew the Prohibited Act Would "Induce, Enable, Facilitate, or Conceal" Infringement

Section 1202(b)(1) provides: "No person shall, without the authority of the copyright owner or the law ... intentionally remove or alter any copyright management information ... knowing, or ... having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any" copyright. 17 U.S.C. § 1202(b)(1). Section 1202(b)(3) provides: "No person shall, without the authority of the copyright owner or the law ... 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 ... having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any" copyright. Id. § 1202(b)(3).³ Both provisions thus require the defendant to possess the mental state of knowing, or having a reasonable basis to know, that his actions "will induce, enable, facilitate, or conceal" infringement.

The Photographers have not offered any evidence to satisfy that mental state requirement.⁴ Their primary argument is that, because one method of identifying an infringing...