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9th Circuit Decision on the Removal of CMI (Copyright Management Information)

This week, Judge Marsha Berzon issued an opinion in Stevens v. CoreLogic, Inc., No. 16-56089, 2018 U.S. App. LEXIS 16620 (9th Cir. June 2018), affirming a district court’s grant of summary judgment to the Defendant on claims brought against it for violating the Digital Millennium Copyright Act by stripping copyright management information from photos with its Multiple Listing Services software, and later distributing the photos.

The 9th Circuit found that the Defendant did not have the required mental state - knowing that its actions would induce, enable, facilitate or conceal infringement. The MLS software is used to upload photos taken by real estate photographs. The copyright data may be embedded in the image file, or be saved in a separate 'sidecar' file. Federal copyright law restricts the removal of copyright management information.

CoreLogic downsamples real estate photos, in part to make them easier to load on web pages. This process can remove the EXIF and IPTC metadata which can contain copyright management information.

Judge Berzon noted that the Plaintiffs did not present any evidence that they had ever in fact used CMI metadata to detect or prevent copyright infringement. Further, "a party intent on using a copyrighted photograph undetected can itself remove any CMI metadata, precluding detection through a search for the metadata." Id. at *15.

The denial of the Plaintiffs' Motion to Compel the production of certain documents, solely for the purpose of showing that CoreLogic knew its software removed EXIF and IPTC metadata was also affirmed. The Plaintiffs contended that documents on the Defendant's privilege log, for which no attorney was listed as an author or recipient, would contain such evidence. A party seeking to postpone summary judgment for additional discovery must state the specific evidence it seeks and its relevance to its claims. In the light of the fact that extensive discovery has already taken place, this general request with a 'bare assertion' of their likely relevance was insufficient.

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