899 F.3d 666
9th Cir.2018Background
- Photographers Stevens and Vandel (and a related company) shoot real-estate photos, retain copyright, and license images to listing agents who upload them to MLS systems using CoreLogic software.
- The photos contain embedded metadata (EXIF and IPTC). EXIF is camera-generated; IPTC can include author/copyright fields and is used for rights management. Both can contain copyright management information (CMI) under 17 U.S.C. § 1202.
- CoreLogic’s MLS software downsampled/resaved images using third-party image-processing libraries that did not preserve EXIF/IPTC metadata; CoreLogic later modified its software to preserve EXIF after suit but plaintiffs contend IPTC was still stripped.
- Photographers sued under 17 U.S.C. § 1202(b), alleging CoreLogic removed and distributed images with removed CMI; CoreLogic moved for summary judgment before all discovery disputes were resolved.
- District court granted summary judgment for CoreLogic, denied as moot a motion to compel and denied retaxing of costs for corporate witness fees; the photographers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1202(b) liability attaches when software removes CMI without evidence the defendant knew removal would "induce, enable, facilitate, or conceal" infringement | Removal of metadata generally impairs policing and thus violates §1202(b) | §1202(b) requires evidence defendant knew or had reasonable grounds to know removal would likely aid infringement; plaintiffs point only to a generic possibility | Affirmed for CoreLogic: plaintiffs failed to show the required mental state or a pattern/modus operandi making future infringement likely |
| Whether denial of discovery (motion to compel; Rule 56(d) request) before summary judgment was improper | Photographers sought privileged/non-privileged communications to show CoreLogic’s knowledge; argued denial prejudiced their ability to oppose summary judgment | Discovery sought was speculative and not shown to be specifically relevant to the dispositive knowledge element | Affirmed: district court’s implicit denial reviewed de novo but plaintiffs did not identify specific facts the additional discovery would reveal that were essential to oppose summary judgment |
| Whether witness fees for corporate employees/officers are taxable costs | Photographers argued corporate officer witness fees should not be taxed | CoreLogic relied on statute/regional local rule allowing taxation for non-party corporate witnesses not testifying in individual capacity | Affirmed: district court did not abuse discretion in taxing $40/day witness fees for CoreLogic corporate witnesses |
Key Cases Cited
- Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657 (9th Cir.) (review of summary judgment is de novo)
- Murphy v. Millennium Radio Grp., 650 F.3d 295 (3d Cir. 2011) (liability where visible copyright credit was cropped out)
- United States v. Todd, 627 F.3d 329 (9th Cir. 2010) (knowledge of future acts can mean awareness of a pattern or modus operandi)
- Montclair v. Ramsdell, 107 U.S. 147 (U.S. 1883) (statutory interpretation principle that every clause should be given effect)
- Corley v. United States, 556 U.S. 303 (U.S. 2009) (avoid rendering statutory language superfluous)
- Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822 (9th Cir. 2008) (Rule 56(d) requirements for showing what discovery will reveal)
- Garrett v. City & County of San Francisco, 818 F.2d 1515 (9th Cir. 1987) (failure to address Rule 56(d) can be treated as implicit denial and reviewed de novo)