No. __-____
`
`
`IN THE
`Supreme Court of the United States
`__________
`
`ROBERT STEVENS; STEVEN VANDEL,
`Petitioners,
`
`
`v.
`
`
`CORELOGIC, INC.,
`Respondent.
`
`__________
`
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Ninth Circuit
`__________
`
`PETITION FOR A WRIT OF CERTIORARI
`__________
`
`
`
`
`
`
`
`
`
`
`
`DARREN J. QUINN
`LAW OFFICES OF DARREN
`J. QUINN
`12702 Via Cortina,
`Suite 105
`Del Mar, California 92014
`(858) 509-9401
`
`
`January 3, 2019
`
`
`JOEL B. ROTHMAN
` COUNSEL OF RECORD
`SRIPLAW, PLLC, SUITE 100
`21301 Powerline Road
`Boca Raton, FL 33433
`(561) 404-4350
`(joel.rothman@sriplaw.com)
`
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`__________
`
`ROBERT STEVENS; STEVEN VANDEL,
`Petitioners,
`
`
`v.
`
`
`CORELOGIC, INC.,
`Respondent.
`
`__________
`
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Ninth Circuit
`__________
`
`PETITION FOR A WRIT OF CERTIORARI
`__________
`
`
`
`
`
`
`
`
`
`
`
`DARREN J. QUINN
`LAW OFFICES OF DARREN
`J. QUINN
`12702 Via Cortina,
`Suite 105
`Del Mar, California 92014
`(858) 509-9401
`
`
`January 3, 2019
`
`
`JOEL B. ROTHMAN
` COUNSEL OF RECORD
`SRIPLAW, PLLC, SUITE 100
`21301 Powerline Road
`Boca Raton, FL 33433
`(561) 404-4350
`(joel.rothman@sriplaw.com)
`
`
`
`
`
`
`
`(i)
`
`QUESTION PRESENTED
`Whether, in order to satisfy the mental state re-
`quirement of “knowing, or, . . . having reasonable
`grounds to know” that removal or alteration of copy-
`right management information (“CMI”) in violation of
`17 U.S.C. § 1202(b) “will induce, enable, facilitate, or
`conceal an infringement,” a plaintiff must prove
`“identifiable” and “likely” future copyright infringe-
`ment as a result of removal or alteration of CMI, or a
`“pattern of conduct” or “modus operandi” involving
`policing infringement by tracking CMI, as the Ninth
`Circuit held, or whether a plaintiff may instead simp-
`ly prove that removal or alteration of CMI makes “in-
`fringement generally possible or easier to accom-
`plish” without the need for simultaneously proving
`removal or alteration of CMI resulted in a “particular
`act of infringement,” as the Register of Copyrights
`has advocated.
`
`
`
`
`
`
`
`
`
`
`
`(ii)
`
`PARTIES TO THE PROCEEDINGS
`Petitioners Robert Stevens and Steven Vandel were
`the plaintiffs and the appellants in the proceedings
`below.
`Respondent CoreLogic, Inc. was the defendant and
`the appellee in the proceedings below.
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`QUESTIONS PRESENTED ........................................ i
`PARTIES TO THE PROCEEDINGS ......................... ii
`TABLE OF AUTHORITIES ...................................... iv
`OPINIONS BELOW ................................................... 1
`JURISDICTION .......................................................... 1
`STATUTORY PROVISIONS INVOLVED ................. 1
`INTRODUCTION ....................................................... 2
`STATEMENT .............................................................. 5
`A. Statutory Background ................................. 5
`B. Factual Background .................................... 9
`C. Proceedings Below ..................................... 11
`REASONS FOR GRANTING THE PETITION ....... 12
`I. COPYRIGHTED DIGITAL PHOTO-
`GRAPHS
`(AND RELATED CMI
`METADATA) ARE EXCEPTIONALLY
`IMPORTANT TO THE INTERNET ............ 13
`A. WIPO And Nearly 100 Countries
`Implementing The WCT And WPPT
`Recognized The Exceptional Im-
`portance Of The Internet And The
`Need To Protect CMI For Digital
`Works ...................................................... 13
`B. Congress Recognized The
`Im-
`portance Of The Internet And the
`DMCA’s Role in Protecting CMI to
`Prevent Piracy
`In Copyrighted
`Works ...................................................... 17
`
`(iii)
`
`
`
`
`
`
`
`(iv)
`
`II. THE NINTH CIRCUIT DEFIED THE
`PLAIN LANGUAGE OF § 1202(B)
`AND THE FORMAL POSITION OF
`THE REGISTER OF COPYRIGHTS
`TO EFFECTIVELY RE-WRITE POR-
`TIONS OF THE MENTAL STATE EL-
`EMENT ........................................................ 19
`A. The Ninth Circuit Defies § 1202’s
`Plain Language and the Formal Po-
`sition Of The Register of Copyrights ..... 21
`B. The Ninth Circuit Was Not Free To
`Re-write § 1202’s Mental State Ele-
`ment ........................................................ 25
`1. The Ninth Circuit Erred In Re-
`quiring Proof of “Identifiable”
`And “Likely” Future Infringe-
`ments .................................................. 26
`2. The Ninth Circuit Misplaced Its
`Reliance On A Sex Trafficking
`Case That Required Proof of De-
`fendant’s Past “Pattern Of Con-
`duct” Or “Established Modus
`Operandi” ............................................ 27
`3. The Ninth Circuit Erred By Re-
`quiring Proof of Photographers’
`Policing
`Infringement Using
`CMI Metadata To Establish De-
`fendant’s Mental State ....................... 29
`C. The Ninth Circuit Made It Effective-
`ly Impossible To Prove Its Height-
`ened § 1202 Mental State Require-
`ments ........................................................ 32
`
`
`
`
`
`
`
`(v)
`
`
`
`D. District Courts May Dismiss Com-
`plaints That Cannot Plead The
`Ninth Circuit’s Heightened Mental
`State Requirements ................................. 33
`
`III. THIS CASE PROVIDES AN IDEAL
`VEHICLE FOR RESOLUTION OF
`THE QUESTION PRESENTED .................. 35
`CONCLUSION .......................................................... 36
`APPENDIX
`Appendix A – Court of Appeals Order And
`Amended Opinion (August 6, 2018) .................... 1a
`Order denying rehearing en banc (Au-
`gust 6, 2018) .................................................... 2a
`Amended Opinion (August 6, 2018) ............... 3a
`Appendix B – District Court Order Granting
`Summary Judgment .......................................... 23a
`Appendix C – 17 U.S.C. § 1202 ................................. 39a
`Appendix D – 17 U.S.C. § 512(i) ............................. 44a
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`(vi)
`
`TABLE OF AUTHORITIES
`
`Page
`
`SUPREME COURT CASES
`Harlow v. Fitzgerald,
`457 U.S. 800 (1982) ...................................32, 33
`Henson v. Santander Consumer USA Inc.,
`137 S. Ct. 1718 (2017) ..................................... 26
`Jimenez v. Quarterman,
`555 U.S. 113 (2009) ........................................ 21
`Microsoft Corp. v. AT&T Corp.,
`550 U.S. 437 (2007) ........................................ 18
`Nat’l Ass’n of Mfrs. v. DOD,
`138 S. Ct. 617 (2018) ...................................... 26
`Rosemond v. United States,
`572 U.S. 65 (2014) .......................................... 33
`Star Athletica, L.L.C. v. Varsity Brands,
`Inc.,
`137 S. Ct. 1002 (2017) .................................... 22
`Wis. Cent. Ltd. v. United States,
`138 S. Ct. 2067 (2018) .................................... 26
`
`
`FEDERAL CASES
`Agence Fr. Presse v. Morel,
`934 F. Supp. 2d 547 (S.D.N.Y. 2013) ............. 25
`Boatman v. United States Racquetball
`Ass’n,
` 33 F. Supp. 3d 1264, 1275-1276 (D. Co-
`lo. 2014) .......................................................... 25
`Gardner v. Cafepress Inc.,
`
`
`
`
`
`
`
`(vii)
`
`2014 U.S. Dist. LEXIS 25405 (S.D. Cal.
`Feb. 26, 2014) ................................................. 31
`Friedman v. Live Nation Merch., Inc.,
`833 F.3d 1180 (9th Cir. 2016) ........................ 32
`McClatchey v. AP,
`2007 U.S. Dist. LEXIS 17768 (W.D. Pa.
`Mar. 9, 2007) .................................................. 25
`Murphy v. Millennium Radio Grp. LLC,
`2015 U.S. Dist. LEXIS 10719 (D.N.J.
`Jan. 29, 2015) ................................................. 22
`Philpot v. Alternet Media, Inc.,
`2018 U.S. Dist. LEXIS 203500 (N.D.
`Cal. Nov. 30, 2018) ......................................... 34
`Propet USA, Inc. v. Shugart,
`2007 U.S. Dist. LEXIS 94635 (W.D.
`Wash. Dec. 13, 2007) ...................................... 25
`United States v. Todd,
`627 F.3d 329 (9th Cir. 2010) .......................... 27
`
`
`TREATIES
`WIPO Copyright Treaty, S. Treaty Doc. No.
`105-17 ............................................................... 5
`WIPO Performances and Phonogram Trea-
`ty, S. Treaty Doc. No. 105-17 ........................... 5
`
`
`STATUTES AND RULES
`17 U.S.C. § 101 ....................................................... 5
`17 U.S.C. § 106(1) ................................................. 20
`17 U.S.C. § 106(2) ................................................. 20
`
`
`
`
`
`
`
`(viii)
`
`17 U.S.C. § 106(3) ................................................. 20
`17 U.S.C. § 106(4) ................................................. 20
`17 U.S.C. § 106(5) ................................................. 20
`17 U.S.C. § 106(6) ................................................. 20
`17 U.S.C. § 106A ................................................... 20
`17 U.S.C. § 512(i) .................................................... 1
`17 U.S.C. § 512(i)(1)(B) ..................................... 9, 31
`17 U.S.C. § 512(i)(2).......................................... 9, 31
`17 U.S.C. § 1202 ................ 1, 2, 8, 21, 23, 27, 32, 34
`17 U.S.C. § 1202(b) ........................................ passim
`17 U.S.C. § 1202(b)(1) .................................... 3, 4, 19
`17 U.S.C. § 1202(b)(3) ......................................... 3, 4
`17 U.S.C. § 1202(c) ............................................. 2, 3
`17 U.S.C. § 1203(a) ................................................. 3
`17 U.S.C. § 1204(a) ................................................. 3
`18 U.S.C. § 1591(a) ............................................... 28
`26 U.S.C. § 5861(g) ............................................... 31
`28 U.S.C. § 1254(1) ................................................. 1
`Digital Millennium Copyright Act, 112 Stat.
`2860 ..........................................................2, 8, 32
`Fed. R. Civ. Proc. 56(d) ....................................27, 33
`
`
`OTHER MATERIALS
` “Basic Proposal For The Substantive Provi-
`sions Of The Treaty For The Protection
`Of The Rights Of Performers And Pro-
`ducers Of Phonograms To Be Considered
`
`
`
`
`
`(ix)
`
`By The Diplomatic Conference,” WIPO,
`Diplomatic Conference On Certain Copy-
`right And Neighboring Rights Questions,
`CRND/DC/5, ¶23.17 (August 30, 1996)
`accessible at
`https://www.wipo.int/edocs/mdocs/diplconf/e
`n/crnr_dc/crnr_dc_5.pdf................................... 17
`Merriam-Webster Dictionary, accessible at
`https://www.merriam-webster.com/ .......... 22-23
`“THE ADVANTAGES OF ADHERENCE
`TO THE WIPO COPYRIGHT TREATY
`(WCT) AND THE WIPO PERFOR-
`MANCES AND PHONOGRAMS TREA-
`TY (WPPT)” prepared by the Interna-
`tional Bureau of WIPO, accessible at
`https://www.wipo.int/export/sites/www/copy
`right/en/activities/pdf/advantages_wct_w
`ppt.pdf ................................................... 14, 15, 16
`“WIPO ONE YEAR LATER: ASSESSING
`CONSUMER ACCESS TO DIGITAL
`ENTERTAINMENT ON THE INTER-
`NET AND OTHER MEDIA” Hearing Be-
`fore The Subcommittee On Telecommu-
`nications, Trade, And Consumer Protec-
`tion Of The Committee On Commerce
`House Of Representatives, October 28,
`1999, Serial No. 106–83 .............................17, 18
`
`
`
`
`
`
`
`
`
`1
`
`Robert Stevens and Steven Vandel (“Photogra-
`phers”) respectfully petition for a writ of certiorari to
`review the judgment of the Ninth Circuit.
`OPINIONS BELOW
`The amended opinion of the court of appeals
`(App., infra, 1a-22a) is reported at 899 F.3d 666 (9th
`Cir. Aug. 6, 2018).
`The court of appeals order denying petition for
`panel rehearing or rehearing en banc (App., infra, 2a)
`is unreported but available at 2018 U.S. App. LEXIS
`21731 (9th Cir. Aug. 6, 2018).
`The order of the district court granting re-
`spondent’s motion for summary judgment (App., in-
`fra, 23a-38a) is reported at 194 F. Supp. 3d 1046
`(S.D. Cal. July 1, 2016).
`JURISDICTION
`The court of appeals entered its judgment on
`August 6, 2018. On November 8, 2018, Justice Ka-
`gan extended the time for filing a certiorari petition
`to and including January 3, 2019. The jurisdiction of
`this Court is invoked under 28 U.S.C. § 1254(1).
`STATUTORY PROVISIONS INVOLVED
`Relevant provisions of the Copyright Act (17 U.S.C.)
`and the Digital Millennium Copyright Act (“DMCA”),
`17 U.S.C. § 1202 and 17 U.S.C. § 512(i) are repro-
`duced at App., infra, 39a-45a.
`
`
`
`
`
`
`
`
`
`2
`
`
`
`INTRODUCTION
`In 1998, Congress enacted 17 U.S.C. § 1202 as
`part of the Digital Millennium Copyright Act
`(“DMCA”) to implement the WIPO Copyright Treaty
`and WIPO Performances and Phonogram Treaty in
`force in nearly 100 countries. Generally, § 1202 per-
`tains to “copyright management information” (“CMI”)
`which is defined in § 1202(c) as:
`any of the following information con-
`veyed in connection with copies or
`phonorecords of a work or performances
`or displays of a work, including in digi-
`tal form, except that such term does not
`include any personally identifying in-
`formation about a user of a work or of a
`copy, phonorecord, performance, or dis-
`play of a work:
`(1) The title and other information
`identifying the work, including the in-
`formation set forth on a notice of copy-
`right.
`(2) The name of, and other identifying
`information about, the author of a work.
`(3) The name of, and other identifying
`information about, the copyright owner
`of the work, including the information
`set forth in a notice of copyright.
`(4) With the exception of public per-
`formances of works by radio and televi-
`sion broadcast stations, the name of,
`and other identifying information about,
`a performer whose performance is fixed
`in a work other than an audiovisual
`work.
`
`
`
`
`
`
`
`3
`
`
`
`(5) With the exception of public per-
`formances of works by radio and televi-
`sion broadcast stations, in the case of an
`audiovisual work, the name of, and oth-
`er identifying information about, a writ-
`er, performer, or director who is credited
`in the audiovisual work.
`(6) Terms and conditions for use of
`the work.
`(7) Identifying numbers or symbols
`referring to such information or links to
`such information.
`(8) Such other information as the
`Register of Copyrights may prescribe by
`regulation, except that the Register of
`Copyrights may not require the provi-
`sion of any information concerning the
`user of a copyrighted work.
`17 U.S.C. § 1202(c).
`Section 1202(b)(1) prohibits the removal or altera-
`tion of CMI. Section 1202(b)(3) prohibits distribution
`of copies of works with CMI removed or altered. Both
`subsections are enforceable in civil actions for dam-
`ages. 17 U.S.C. § 1203(a) (“Any person injured by a
`violation of section . . . 1202 may bring a civil action
`in an appropriate United States district court for
`such violation.”). Both subsections may also be the
`subject of criminal prosecutions. See 17 U.S.C.
`§ 1204(a).
`Petitioners are real estate photographers who
`create and license photographs of real estate for sale
`to real estate agents. Petitioners retain the copyright
`in their photographs and include within those photo-
`graphs
`copyright management
`information
`in
`
`
`
`
`
`
`
`4
`
`
`metadata, computer readable fields attached to a
`photograph that contain information about the im-
`age, the photographer, copyright restrictions, and
`other relevant information.
`Respondent CoreLogic, Inc. (“CoreLogic”) makes
`and sells Multiple Listing Service (MLS) software
`platforms that the vast majority of real estate agents
`use to upload petitioners’ photographs and list prop-
`erties for sale. Respondent also provides database
`information services on the real estate industry to
`financial services industries.
`Petitioners sued respondent for, inter alia, viola-
`tion of § 1202(b)(1) and § 1202(b)(3) because respond-
`ent removed petitioners’ CMI metadata from their
`photographs after those photographs were uploaded
`to respondent’s MLS platforms, and distributed peti-
`tioners’ photographs knowing that petitioners’ CMI
`metadata was removed. Respondent then took the
`petitioners’ metadata stripped photographs, and CMI
`stripped photographs taken by other real estate pho-
`tographers, and distributed those photographs to re-
`spondent’s financial services customers, earning re-
`spondent nearly $13 million in infringing revenues.
`The district court granted summary judgment to
`respondent on petitioners’ claims under § 1202(b)(1)
`and § 1202(b)(3) because, according to the district
`court, petitioners presented “no evidence: (1) that
`CoreLogic knew or had reason to know that distrib-
`uting images without CMI would ‘induce, enable, fa-
`cilitate or conceal an infringement’ and (2) that any
`distribution was done without the authority of the
`copyright owner.” (App., infra, 35a).
`The court of appeals for the Ninth Circuit af-
`firmed summary judgment for respondent on peti-
`tioners’ § 1202(b) claims determining that petitioners
`
`
`
`
`
`
`
`5
`
`
`failed to offer any evidence to satisfy the mental
`state requirement of “knowing, or, . . . having rea-
`sonable grounds to know,” that respondent’s actions
`in stripping CMI metadata from petitioners’ photo-
`graphs “will induce, enable, facilitate, or conceal” in-
`fringement. (App., infra, 9a).
`The mental state requirement imposed by both
`the district court and the court of appeals goes far
`beyond the plain “knowing, or, . . . having reasonable
`grounds to know,” language of the statute. Requiring
`proof a “past pattern of conduct” or an “established
`modus operandi” related to specific “identifiable in-
`fringements” from the removal or alteration of CMI,
`or that removal or alteration of CMI “will” cause such
`instances of infringement in the future, imposes a
`burden on plaintiffs that § 1202(b) does not mandate.
`(App., infra, 10a). Rather, the mental state of “know-
`ing, or, . . . having reasonable grounds to know, that
`it will induce, enable, facilitate, or conceal an in-
`fringement” is appropriately satisfied by proof that
`CMI removal or alteration makes “infringement gen-
`erally possible or easier to accomplish,” as the Regis-
`ter of Copyrights requested that Congress “make
`clear.” (see n. 10, infra).
`STATEMENT
`A. Statutory Background
`International agreements concerning copyright
`include the WIPO Copyright Treaty (“WCT”) and the
`WIPO Performances and Phonogram Treaty
`(“WPPT”). 17 U.S.C. § 101.
`Article 12 of the WCT provides:
`(1) Contracting Parties shall provide
`adequate and effective legal reme-
`dies against any person knowingly per-
`
`
`
`
`
`
`
`6
`
`
`
`forming any of the following acts know-
`ing, or with respect to civil remedies
`having reasonable grounds to know,
`that it will induce, enable, facilitate
`or conceal an infringement of any
`right covered by this Treaty or the
`Berne Convention:
`(i) to remove or alter any electronic
`rights management information without
`authority;
`(ii) to distribute, import for distribu-
`tion, broadcast or communicate to the
`public, without authority, works or cop-
`ies of works knowing that electronic
`rights management
`information has
`been removed or altered without author-
`ity.
`(2) As used in this Article, “rights
`management information” means in-
`formation which identifies the work, the
`author of the work, the owner of any
`right in the work, or information about
`the terms and conditions of use of the
`work, and any numbers or codes that
`represent such information, when any of
`these items of information is attached to
`a copy of a work or appears in connec-
`tion with the communication of a work
`to the public.
`S. Treaty Doc. No. 105-17 (adopted December 20,
`1996) (emphasis added).
`Article 19 of the WPPT provides:
`(1) Contracting Parties shall provide
`adequate and effective legal reme-
`
`
`
`
`
`
`
`
`
`
`
`7
`
`dies against any person knowingly per-
`forming any of the following acts know-
`ing, or with respect to civil remedies
`having reasonable grounds to know,
`that it will induce, enable, facilitate
`or conceal an infringement of any
`right covered by this Treaty:
`(i) to remove or alter any electronic
`rights management information without
`authority;
`(ii) to distribute, import for distribu-
`tion, broadcast, communicate or make
`available to the public, without authori-
`ty, performances, copies of fixed perfor-
`mances or phonograms knowing that
`electronic rights management
`infor-
`mation has been removed or altered
`without authority.
`(2) As used in this Article, “rights
`management information” means in-
`formation which identifies the perform-
`er, the performance of the performer,
`the producer of the phonogram, the
`phonogram, the owner of any right in
`the performance or phonogram, or in-
`formation about the terms and condi-
`tions of use of the performance or pho-
`nogram, and any numbers or codes that
`represent such information, when any of
`these items of information is attached to
`a copy of a fixed performance or a pho-
`nogram or appears in connection with
`the communication or making available
`of a fixed performance or a phonogram
`to the public.
`
`
`
`
`
`8
`
`
`S. Treaty Doc. No. 105-17 (adopted December 20,
`1996) (emphasis added).
`DMCA § 1202 implements Article 12 of the WCT
`and Article 19 of the WPPT. 112 Stat. 2860, 2863,
`2872-2875.
`DMCA § 1202(b) provides for liability regarding
`removal or alteration of “copyright management in-
`formation” as follows:
`(b) Removal or alteration of copyright
`management information. No person
`shall, without the authority of the copy-
`right owner or the law--
`(1) intentionally remove or alter
`any copyright management in-
`formation,
`(2) distribute or import for dis-
`tribution copyright management
`information knowing that the
`copyright management
`infor-
`mation has been removed or al-
`tered without authority of the
`copyright owner or the law, or
`(3) distribute, import for distri-
`bution, or publicly perform works,
`copies of works, or phonorecords,
`knowing that copyright manage-
`ment information has been re-
`moved or altered without authori-
`ty of the copyright owner or the
`law,
`knowing, or, with respect to civil rem-
`edies under section 1203 [17 USCS
`§ 1203], having reasonable grounds
`to know, that it will induce, enable,
`
`
`
`
`
`
`
`9
`
`
`
`facilitate, or conceal an infringe-
`ment of any right under this title.
`17 U.S.C. § 1202(b) (emphasis added).
`By way of background, copyright manage-
`ment information metadata should be consid-
`ered a “standard technical measure” under 17
`U.S.C. § 512(i)(2) which provides:
`(2) Definition. As used in this subsec-
`tion, the term “standard technical
`measures” means technical measures
`that are used by copyright owners to
`identify or protect copyrighted works
`and--
`(A) have been developed pursuant to
`a broad consensus of copyright owners
`and service providers in an open, fair,
`voluntary, multi-industry
`standards
`process;
`(B) are available to any person on
`reasonable
`and
`nondiscriminatory
`terms; and
`(C) do not impose substantial costs on
`service providers or substantial burdens
`on their systems or networks.
`17 U.S.C. § 512(i)(2). 17 U.S.C.S. § 512(i)(1)(B)
`provides: “The limitations on liability estab-
`lished by this section shall apply to a service
`provider only if the service provider—(B) ac-
`commodates and does not
`interfere with
`standard technical measures.”
`B. Factual Background
`Photographers’ action alleged, inter alia, viola-
`tions of § 1202(b) by respondent CoreLogic’s removal
`of CMI metadata from Photographers’ photographs,
`
`
`
`
`
`
`
`10
`
`
`and CoreLogic’s distribution of CMI metadata
`stripped photographs thereafter.
`Photographers’ digital photographs of real estate
`for sale included CMI (e.g. author name, copyright
`owner name) in metadata. CMI metadata can be
`stored in both EXIF1 fields (e.g. “Copyright” and “Art-
`ist”) and IPTC2 fields (e.g. “Title,” “Copyright Notice,”
`“Creator Work Email,” and “Creator Work Tele-
`phone”).
`Photographers’ real estate agent licensees up-
`loaded digital real estate photographs with CMI
`metadata to CoreLogic’s MLS software platforms.
`CoreLogic uniformly removed CMI metadata pre-
`sent at the time of upload to its MLS platforms.
`CoreLogic’s MLS platforms then displayed the up-
`loaded photographs with CMI metadata removed.
`CoreLogic then infringed the CMI metadata
`stripped photographs, including Photographers’ pho-
`tographs, by distributing them through its “Partner
`InfoNet” program that generated nearly $13 million
`in revenue from financial services information cus-
`tomers of CoreLogic. No effort was made to ascertain
`the identity of the copyright owners of the photo-
`graphs, or obtain permission for their use, prior to
`distribution by CoreLogic.
`Nearly two years after Photographers’ action was
`filed, and after CoreLogic filed its summary judg-
`ment motion in the district court, CoreLogic still con-
`
`1 “EXIF” refers to Exchangeable Image File Format. Photo-
`raphers contend that there are 49 CMI metadata fields in EXIF
`format.
`2 “IPTC” refers to International Press Telecommunications
`Council. Photographers contend that there are 90 CMI metada-
`ta fields in IPTC format.
`
`
`
`
`
`
`
`11
`
`
`tinued to remove CMI metadata in IPTC format from
`photographs uploaded to its MLS software platforms.
`For example, as shown below, CoreLogic removed
`CMI metadata embedded in IPTC format, but did not
`remove the visible CMI watermark “©SquareFoot-
`Studios.net” circled in red.
`
`
`
`
`C. Proceedings Below
`The district court granted summary judgment to
`CoreLogic even though removal of CMI metadata in
`IPTC fields such as “Copyright Owner Name,” “Crea-
`tor Work Email,” and “Creator Work Telephone” con-
`tinued unabated after the case was filed. (App., infra,
`27a, n.3).
`On appeal, the Ninth Circuit affirmed on the sole
`ground that, in the court of appeals’ view, Photogra-
`phers failed to satisfy § 1202(b)’s mental state re-
`quirement of “knowing, or . . . having reasonable
`grounds to know” that removal or alteration of CMI
`“will induce, enable, facilitate, or conceal an in-
`fringement of any” copyright. (App., infra, 9a).
`The Ninth Circuit denied Photographers’ petition
`for panel rehearing or rehearing en banc (App., infra,
`
`
`
`
`
`
`
`12
`
`
`2a)., but did file an amended opinion to insert the
`bolded language in the sentence:
`Applying that concept here, we hold
`that a plaintiff bringing a Section
`1202(b) claim must make an affirmative
`showing, such as by demonstrating a
`past “pattern of conduct” or “modus op-
`erandi”, that the defendant was aware
`or had reasonable grounds to be
`aware of the probable future impact of
`its actions.
`(App., infra,10) (emphasis added).
`
`
`REASONS FOR GRANTING THE PETITION
`Copyrighted digital photographs (and related
`CMI metadata) are exceptionally important to the
`Internet. The World Intellectual Property Organiza-
`tion (“WIPO”) and nearly 100 countries implement-
`ing the WCT and WPPT recognized the exceptional
`importance of the Internet and the need to protect
`CMI for digital works. See §I.A. Congress recog-
`nized the importance of the Internet and DMCA’s
`role in protecting CMI for copyrighted works to stop
`piracy. See §I.B.
`The Ninth Circuit defied the plain language of
`§ 1202(b) and the formal position of the Register of
`Copyrights to effectively rewrite portions of the men-
`tal state element. See §II.A and B. The Ninth Cir-
`cuit made it effectively impossible for Photographers
`and future plaintiffs to prove its heightened § 1202(b)
`mental state requirements or to even plead a claim.
`See §II.C and D.
`This case provides an ideal opportunity to resolve
`the question presented and determine the mental
`
`
`
`
`
`
`
`13
`
`
`state necessary to prove a violation of § 1202(b). The
`Ninth Circuit affirmed summary judgment solely on
`the single issue of defendant’s mental state; all is-
`sues are de novo; the factual scenario is likely re-
`peatable; and no better vehicle will emerge.
`
`I. COPYRIGHTED DIGITAL PHOTOGRAPHS
`(AND RELATED CMI METADATA) ARE
`EXCEPTIONALLY IMPORTANT TO THE
`INTERNET
`Copyrighted digital photographs (and related
`CMI metadata) are exceptionally important to the
`Internet. Eye catching copyrighted digital photo-
`graphs on the Internet grab attention and drive
`commerce. As noted by
`the Ninth Circuit,
`“[r]esidential real estate sales today depend largely
`on online sites displaying properties for sale.” (App.,
`infra, 3a).
`As discussed in §I.A, WIPO and nearly 100 coun-
`tries implementing the WCT and WPPT recognized
`the exceptional importance of the Internet and the
`need to protect CMI for digital works.
`As discussed in §I.B, Congress recognized the im-
`portance of the Internet and DMCA’s role in protect-
`ing CMI for copyrighted works to stop piracy.
`
`
`A. WIPO And Nearly 100 Countries Imple-
`menting The WCT and WPPT Recognized
`The Exceptional Importance Of The Inter-
`net And The Need To Protect CMI For Dig-
`ital Works
`In 1996, when the Internet was still in its infancy,
`WIPO, in coordination with numerous countries
`around the world, hammered out two treaties: WCT
`
`
`
`
`
`
`
`14
`
`
`and WPPT. The International Bureau of WIPO
`summarized the challenges of protecting copyrights
`on the Internet that these two treaties addressed.
`Among other things, both the WCT
`and the WPPT address the challenges
`posed by today’s digital technologies, in
`particular the dissemination of protect-
`ed material over digital networks such
`as the Internet. For this reason, they
`have sometimes been referred to as the
`“Internet treaties.”
`The WCT and WPPT were adopted by
`consensus, by more than 100 countries.
`They therefore reflect a broad interna-
`tional agreement as to how copyright
`and related rights should be handled in
`today’s environment, including the con-
`text of digital technologies. This is be-
`cause many compromises were made
`during the negotiation process between
`the demands of countries seeking
`stronger rights and those seeking great-
`er protection for users and for interme-
`diaries such as equipment and commu-
`nications infrastructure providers. The
`ultimate
`result has been widely
`acknowledged as balanced and fair.
`WIPO Report3, at 2
`
`3 “WIPO Report” refers to a document prepared by the Inter-
`national Bureau of WIPO titled “THE ADVANTAGES OF AD-
`HERENCE TO THE WIPO COPYRIGHT TREATY (WCT) AND
`THE WIPO PERFORMANCES AND PHONOGRAMS TREATY
`(WPPT)” accessible at
`https://www.wipo.int/export/sites/www/copyright/en/activities
`/pdf/advantages_wct_wppt.pdf
`
`
`
`
`
`
`
`15
`
`
`
`The two treaties safeguard “the reliability and in-
`tegrity of the online marketplace by requiring coun-
`tries to prohibit the deliberate alteration or deletion
`of electronic ‘rights management information’: that
`is, information which accompanies any protected ma-
`terial, and which identifies the work, its creators,
`performer, or owner, and the terms and conditions
`for its use.” WIPO Report, at 3.
`WIPO explained that since the Internet is the
`“world’s biggest copy machine,” it is critical for the
`legal system to respond in effective and appropriate
`ways.
`
`If legal rules are not set and applied
`appropriately, digital technology has the
`potential to undermine the basic princi-
`ples of copyright and related rights. The
`Internet has been described as “the
`world’s biggest copy machine.” The older
`technologies of photocopying and taping
`allow mechanical copying by individual
`consumers, but in limited quantities,
`requiring considerable time, and of a
`lower quality than the original. Moreo-
`ver, the copies are physically located in
`the same place as the person making
`the copy. On the Internet, in contrast,
`one can make an unlimited number of
`copies, virtually instantaneously, with-
`out degradation in quality. These copies
`in turn can be transmitted to locations
`around the world
`in a matter of
`minutes. The result could be the disrup-
`tion of traditional markets for the sale
`of copies of computer programs, music,
`art, books and movies.
`
`
`
`
`
`
`
`16
`
`
`
`It is therefore critical to adjust the le-
`gal system to respond to the new tech-
`nological environment in an effective
`and appropriate way both at national
`and international levels, as the Internet
`is a borderless medium; and to do so
`quickly, through adherence to, and im-
`plementation of, the treaties, because
`technologies and markets evolve in-
`creasingly rapidly.
`WIPO Report, at 5.
`WIPO explained: “If rightholders are secure in
`their ability to sell and license their property over
`the Internet, they will exploit this market fully and
`make more and more valuable works available
`through this medium. Appropriate limitations and
`exceptions will continue to safeguard public interest
`uses.” WIPO Report, at 5-6. “The economic im-
`portance of copyright industries in developed market
`economies has been well documented.” Id. at 6. “The
`treaties will encourage investment in the country,
`both domestic and foreign, by providing greater cer-
`tainty to businesses that their property can be safely
`disseminated there.” Id. at 7.
`WIPO explained that implementation of the two
`treaties requires technological adjuncts to copyrights
`be added to provide “adequate and effective legal
`remedies against . . . the deliberate deletion or alte
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
