Stevens v. Corelogic, Inc.: Automated Metadata Scrubbing Does Not Violate CMI Provisions of the DMCA

In Stevens v. CoreLogic, Inc., the U.S. District Court for the Southern District of California examined § 1202 of the Copyright Act, a part of the Digital Millennium Copyright Act protecting the integrity of copyright management information (“CMI”), and  held that unintentional removal of metadata embedded in a photograph does not violate the statute.

Background:

Many digital images include embedded CMI in the images’ metadata.  The CMI provides information regarding the author of a photograph, and while the CMI is not immediately visible in the photograph itself, it can be accessed using common software programs.  However, when a digital image file is processed by a computer program, metadata can be unintentionally altered or removed during resizing, rotating, cropping, and adjusting resolution of the images.

CoreLogic is a technology company that offers software to assist multiple listing service organizations (“MLS”) and real estate agents to post and access property listings, including photographs of properties.  Plaintiffs, professional photographers, licensed some of their photographs of homes to real estate agents for upload to an MLS, knowing their images would be used on these websites, and retained all other copyright rights.

The photographers claimed that during the processing of their licensed photographs for upload to an MLS, CoreLogic stripped the image files of metadata, including CMI.  The plaintiffs argued that CoreLogic did not have any valid reason to remove the information, and in doing so, made it easier for MLS users to unlawfully copy the images.

 Copyright Act Section 1202:

Section 1202 addresses the integrity of CMI and provides damages if it is altered or removed under certain conditions.  Subsection (a) states that a person may not knowingly, with the intent to “induce, enable, facilitate, or conceal infringement,” provide or distribute false CMI.    Subsection (b) states that a person may not, without the authority of the copyright owner, intentionally remove or alter CMI, distribute CMI knowing that it has been removed, or distribute works or copies knowing that CMI has been removed.  The court discussed both provisions, but focused mostly on the latter.

The Court’s Decision:

The court granted CoreLogic’s motion for summary judgment dismissing the plaintiffs’ § 1202 claims, finding that the photographers had failed to prove the necessary statutory elements. Specifically, they could not prove that CoreLogic provided or distributed false CMI; that any CMI was embedded in their photograph; that CoreLogic took any action that removed or altered any CMI (assuming it was embedded); or, if such actions were taken, that they were intentional.

The photographers argued that some of their photographs contained CMI in the metadata at the time the images were licensed to the real estate agents, but the court was unconvinced.  The court also noted that the CMI (if any) could have been removed from the images in a multitude of ways before they were even uploaded to the MLS via CoreLogic’s default platform.

In addition, the court rejected the argument that CoreLogic could be held responsible for the effects of uploading the images.  The court found that third parties – the actual uploaders – performed this act, not CoreLogic.  As the software developer, CoreLogic did not have any control over which photographs were uploaded and whether they contained any CMI.  Regardless, even if CoreLogic had removed CMI, the court held that the photographers did not prove that CoreLogic intentionally removed it, or that the absence of metadata actually led to copyright infringement.

Finally, the court held that when the photographers granted the real estate agents licenses to use their photographs, they knew the MLS sites used special software and knew the agents would, at least in some ways, manipulate the photographs for listing purposes.  The agreements between the photographers and the agents were silent on whether the agents were prohibited from removing metadata, and accordingly, the court held that the plaintiffs effectively granted an implied license to upload the photographs even though the CMI may have been removed as a result.

 Conclusion:

The court’s decision highlights the difficulties that photographers who assert § 1202 claims may encounter in the face of new image-sharing technologies.  Software developers may make efforts to ensure that their products preserve photographic metadata, but the law does not require them to do so; rather, automated systems that inadvertently scrub metadata as a consequence of image processing, at least in California, do not violate the statute.  Image metadata is inherently prone to removal as the fields can easily be overwritten or deleted. This lesson, coupled with the court’s observation that the photographers never warned the real estate agents not to remove embedded metadata, should remind photographers and those companies that permit images to be uploaded, that contracts should be clear regarding who should be responsible with respect to retaining metadata and whether anyone should be liable as a result of any removal or alteration.