`
`
`
`Exhibit
`Exhibit
`
`A
`A
`
`

`

`Stevens v. CoreLogic, Inc.
`
`United States Court of Appeals for the Ninth Circuit
`
`November 6, 2017, Argued and Submitted, Pasadena, California; August 6, 2018, Filed
`
`No. 16-56089
`
`Reporter
`899 F.3d 666 *; 2018 U.S. App. LEXIS 21732 **
`
`ROBERT STEVENS; STEVEN VANDEL, individually and
`on behalf of all others similarly situated, Plaintiffs-
`Appellants, v. CORELOGIC, INC., a Delaware Corporation,
`Defendant-Appellee.
`
`Prior History: [**1] Appeal from the United States District
`Court for the Southern District of California. D.C. No. 3:14-
`cv-01158-BAS-JLB. Cynthia A. Bashant, District Judge,
`Presiding.
`
`Stevens v. CoreLogic, Inc., 893 F.3d 648, 2018 U.S. App.
`LEXIS 16620 (9th Cir. Cal., June 20, 2018)
`
`Disposition: AFFIRMED.
`
`Core Terms
`
`Photographers, metadata, software, infringement, discovery,
`district court, documents, conceal, induce, parties, summary
`judgment, alteration, removal, images, costs, motion to
`compel, provides, summary judgment motion, digital, copies,
`notice, real estate, declaration, distribute, additional
`discovery, real estate agent, copyright owner, privilege log,
`mental state, witness fees
`
`Case Summary
`
`Overview
`HOLDINGS: [1]-The dispute was limited to metadata; [2]-
`The photographers had not plausibly stated a claim under 17
`U.S.C.S. § 1202(b)(2) different from their claim under §
`1202(b)(3); [3]-They had not offered any evidence to satisfy
`the mental state requirement in § 1202(b)(1) and (3); [4]-They
`did not need to show that any specific infringement has
`already occurred; [5]-The photographers had not offered any
`specific evidence that removal of copyright management
`information metadata from their real estate photographs
`would impair their policing of infringement; [6]-They had not
`brought forward any evidence indicating that the alleged
`infringer's distribution of real estate photographs ever
`induced, enabled, facilitated, or concealed any particular act
`of infringement by anyone; [7]-The district court properly
`
`denied their request for additional discovery.
`
`Outcome
`Judgment affirmed.
`
`LexisNexis® Headnotes
`
`Civil Procedure > Appeals > Standards of Review > De
`Novo Review
`
`Civil Procedure > Appeals > Summary Judgment
`Review > Standards of Review
`
`HN1[
`
`] Standards of Review, De Novo Review
`
`An appellate court reviews de novo a district court's decision
`to grant summary judgment.
`
`Copyright Law > Copyright Infringement
`Actions > Digital Millennium Copyright Act > Prohibited
`Conduct
`
`] Digital Millennium Copyright Act, Prohibited
`HN2[
`Conduct
`
`17 U.S.C.S. § 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. 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.
`
`

`

`899 F.3d 666, *666; 2018 U.S. App. LEXIS 21732, **1
`
`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.
`
`Copyright Law > Copyright Infringement
`Actions > Digital Millennium Copyright Act > Prohibited
`Conduct
`
`] Digital Millennium Copyright Act, Prohibited
`HN3[
`Conduct
`
`17 U.S.C.S. § 1202(b)(2) refers to the distribution or import
`for distribution of copyright management
`information
`knowing that the copyright management information has been
`removed or altered without authority of the copyright owner
`or the law.
`
`Governments > Legislation > Interpretation
`
`HN4[
`
`] Legislation, Interpretation
`
`It is a fundamental principle of statutory interpretation that a
`court must give effect, if possible, to every clause and word of
`a statute so that no part will be inoperative or superfluous,
`void or insignificant.
`
`Copyright Law > Copyright Infringement
`Actions > Digital Millennium Copyright Act > Prohibited
`Conduct
`
`] Digital Millennium Copyright Act, Prohibited
`HN5[
`Conduct
`
`To avoid superfluity, the mental state requirement in 17
`U.S.C.S. § 1202(b) must have a more specific application
`than the universal possibility of encouraging infringement;
`specific allegations as to how identifiable infringements will
`be affected are necessary.
`
`Conduct
`
`Statutes requiring knowledge that a future action will occur
`do not require knowledge in the sense of certainty as to a
`future act. Rather, knowledge in the context of such statutes
`signifies a state of mind in which the knower is familiar with
`a pattern of conduct or aware of an established modus
`operandi that will in the future cause a person to engage in a
`certain act. A plaintiff bringing a 17 U.S.C.S. § 1202(b) claim
`must make an affirmative showing, such as by demonstrating
`a past pattern of conduct or modus operandi, that the
`defendant was aware or had reasonable grounds to be aware
`of the probable future impact of its actions.
`
`Copyright Law > Copyright Infringement
`Actions > Digital Millennium Copyright Act
`
`Evidence > Burdens of Proof > Allocation
`
`Infringement Actions, Digital
` Copyright
`HN7[
`]
`Millennium Copyright Act
`
`to satisfy the knowledge requirement, a plaintiff bringing a 17
`U.S.C.S. § 1202(b)(1) claim must offer more than a bare
`assertion that when copyright management information (CMI)
`metadata is removed, copyright infringement plaintiffs lose an
`important method of identifying a photo as infringing.
`Instead, the plaintiff must provide evidence from which one
`can infer that future infringement is likely, albeit not certain,
`to occur as a result of the removal or alteration of CMI.
`
`Civil Procedure > ... > Summary Judgment > Opposing
`Materials > Motions for Additional Discovery
`
`] Opposing Materials, Motions for Additional
`HN8[
`Discovery
`
`The United States Court of Appeals for the Ninth Circuit
`treats a district court's failure specifically to address a Fed. R.
`Civ. P. 56(d) request as an implicit denial.
`
`Copyright Law > Copyright Infringement
`Actions > Digital Millennium Copyright Act > Prohibited
`Conduct
`
`Evidence > Burdens of Proof > Allocation
`
`Civil Procedure > ... > Summary Judgment > Opposing
`Materials > Motions for Additional Discovery
`
`] Opposing Materials, Motions for Additional
`HN9[
`Discovery
`
`HN6[
`
`] Digital Millennium Copyright Act, Prohibited
`
`Fed. R. Civ. P. 56(d) provides if a nonmovant shows by
`affidavit or declaration that, for specified reasons, it cannot
`
` Page 2 of 12
`
`

`

`899 F.3d 666, *666; 2018 U.S. App. LEXIS 21732, **1
`
`present facts essential to justify its opposition to a motion for
`summary judgment, the court may: (1) defer considering the
`motion or deny it, (2) allow time to obtain affidavits or
`declarations or to take discovery, or (3) issue any other
`appropriate order.
`
`Rule 56(d) request.
`
`Civil Procedure > Discovery &
`Disclosure > Discovery > Relevance of Discoverable
`Information
`
`Civil Procedure > Appeals > Standards of
`Review > Abuse of Discretion
`
`HN12[
`]
`Information
`
` Discovery, Relevance
`
`of Discoverable
`
`Civil Procedure > Appeals > Standards of Review > De
`Novo Review
`
`Civil Procedure > ... > Summary Judgment > Opposing
`Materials > Motions for Additional Discovery
`
`Civil Procedure > Discovery &
`Disclosure > Disclosure > Motions to Compel
`
`HN10[
`
`] Standards of Review, Abuse of Discretion
`
`District court discovery rulings denying a motion to compel
`discovery are ordinarily reviewed for abuse of discretion.
`When the district court denies a motion to compel additional
`discovery as moot without considering its merits, however,
`the district court does not exercise any substantive discretion
`about the scope of discovery, so an appellate court reviews
`the denial of discovery de novo.
`
`Civil Procedure > Appeals > Standards of Review > De
`Novo Review
`
`Civil Procedure > ... > Summary Judgment > Opposing
`Materials > Motions for Additional Discovery
`
`HN11[
`
`] Standards of Review, De Novo Review
`
`If a district court implicitly denies a Fed. R. Civ. P. 56(d)
`motion by granting summary judgment without expressly
`addressing the motion, that omission constitutes a failure to
`exercise its discretion with respect to the discovery motion,
`and the denial is reviewed de novo. The United states Court of
`Appeals for the Ninth Circuit has previously allowed that
`explanations for denials of Rule 56(d) request need not be
`explicitly stated when the information sought would not have
`shed light on any of the issues upon which the summary
`judgment decision was based. But when the plaintiff requests
`additional discovery pursuant to Rule 56(d) and the materials
`that a motion to compel sought to elicit are relevant to the
`basis for the summary judgment ruling, district courts should
`provide reasons for denying the discovery motion and the
`
`Rule 26(b)(1) provides unless otherwise limited by court
`order, parties may obtain discovery
`regarding any
`nonprivileged matter that is relevant to any party's claim or
`defense and proportional to the needs of the case, considering
`the importance of the issues at stake in the action, the amount
`in controversy, the parties' relative access to relevant
`information, the parties' resources, the importance of the
`discovery in resolving the issues, and whether the burden or
`expense of the proposed discovery outweighs its likely
`benefit. Fed. R. Civ. P. 26(b)(1).
`
`Civil Procedure > ... > Summary Judgment > Opposing
`Materials > Motions for Additional Discovery
`
`Evidence > Burdens of Proof > Allocation
`
`] Opposing Materials, Motions for Additional
`HN13[
`Discovery
`
`Fed. R. Civ. P. 56(d) provides a device for litigants to avoid
`summary judgment when they have not had sufficient time to
`develop affirmative evidence. A party seeking additional
`discovery under Rule 56(d) must explain what further
`discovery would reveal that is essential to justify its
`opposition to the motion for summary judgment. That
`showing cannot, of course, predict with accuracy precisely
`what further discovery will reveal; the whole point of
`discovery is to learn what a party does not know or, without
`further information, cannot prove.
`
`Civil Procedure > ... > Summary Judgment > Opposing
`Materials > Motions for Additional Discovery
`
`Evidence > Burdens of Proof > Allocation
`
`] Opposing Materials, Motions for Additional
`HN14[
`Discovery
`
`Fed. R. Civ. P. 26(b) advisory committee's note to 1946
`amendment provides the purpose of discovery is to allow a
`
` Page 3 of 12
`
`

`

`899 F.3d 666, *666; 2018 U.S. App. LEXIS 21732, **1
`
`broad search for facts or any other matters which may aid a
`party in the preparation or presentation of his case. But for
`purposes of a Fed. R. Civ. P. 56(d) request, the evidence
`sought must be more than the object of pure speculation. A
`party seeking to delay summary judgment for further
`discovery must state what other specific evidence it hopes to
`discover and the relevance of that evidence to its claims. In
`particular, the requesting party must show that: (1) it has set
`forth in affidavit form the specific facts it hopes to elicit from
`further discovery, (2) the facts sought exist, and (3) the
`sought-after facts are essential to oppose summary judgment.
`
`individually.
`
`Civil Procedure > ... > Costs & Attorney
`Fees > Costs > Costs Recoverable
`
`HN19[
`
`] Costs, Costs Recoverable
`
`The allowance or disallowance of items of costs is determined
`by statute, rule, order, usage, and practice of the instant court.
`
`Civil Procedure > ... > Summary Judgment > Opposing
`Materials > Motions for Additional Discovery
`
`] Opposing Materials, Motions for Additional
`HN15[
`Discovery
`
`A request at that level of generality is insufficient for Fed. R.
`Civ. P. 56(d) purposes.
`
`Civil Procedure > ... > Costs > Costs
`Recoverable > Witnesses
`
`HN20[
`
`] Costs Recoverable, Witnesses
`
`S.D. Cal. Civ. R. 54.1(b)(4)(c) specifically provides that
`witness fees for officers and employees of a corporation may
`be recoverable as costs if they are not parties in their
`individual capacities.
`
`Civil Procedure > ... > Costs & Attorney
`Fees > Costs > Costs Recoverable
`
`Civil Procedure > ... > Discovery > Methods of
`Discovery > Depositions
`
`HN16[
`
`] Costs, Costs Recoverable
`
`HN21[
`
`] Methods of Discovery, Depositions
`
`Fed. R. Civ. P. 54 permits prevailing parties to recover costs
`other than attorney's fees, unless otherwise provided. Fed. R.
`Civ. P. 54(d)(1).
`
`A Fed. R. Civ. P. 30(b)(6) deposition is "treated as a single
`deposition even though more than one person may be
`designated
`to
`testify. Fed. R. Civ. P. 30(a) advisory
`committee's note to 1993 amendment.
`
`Civil Procedure > ... > Costs > Costs
`Recoverable > Witnesses
`
`HN17[
`
`] Costs Recoverable, Witnesses
`
`28 U.S.C.S. § 1821 governs the attendance fees for witnesses.
`
`Civil Procedure > ... > Costs > Costs
`Recoverable > Witnesses
`
`HN18[
`
`] Costs Recoverable, Witnesses
`
`As a general rule, parties may not recover witness fees for
`their own attendance. The expenses of corporate directors or
`officers may, however, be
`taxable, even when
`those
`individuals are testifying on behalf of a corporate party to the
`suit, provided no recovery is sought from the officers
`
`Summary:
`
`SUMMARY**
`
`Copyright Law
`
`The panel filed: (1) an order denying a petition for panel
`rehearing, rejecting on behalf of the court a petition for
`rehearing en banc, and amending an opinion; and (2) an
`amended opinion in a copyright case.
`
`In its amended opinion, the panel affirmed the district court's
`grant of summary judgment in favor of CoreLogic, Inc., on
`professional real estate photographers' claims that CoreLogic
`removed copyright management
`information from
`their
`
`** This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
` Page 4 of 12
`
`

`

`899 F.3d 666, *666; 2018 U.S. App. LEXIS 21732, **1
`
`photographs and distributed their photographs with the
`copyright management information removed, in violation of
`17 U.S.C. § 1202(b)(1)-(3), a part of the Digital Millennium
`Copyright Act.
`
`The photographers alleged that CoreLogic's Multiple Listing
`Services
`software
`removed
`copyright management
`information metadata from their photographs. The panel held
`that § 1202(b) requires a showing that the defendant knew the
`prohibited act would "induce, enable, facilitate, or conceal"
`infringement. The plaintiff must make an affirmative
`showing, such as by demonstrating a past "pattern of conduct"
`or "modus [**2] operandi," that the defendant was aware or
`had reasonable grounds to be aware of the probable future
`impact of
`its actions. The panel concluded
`that
`the
`photographers did not offer evidence to satisfy this mental
`state requirement because they did not provide evidence from
`which one could infer that future infringement was likely,
`albeit not certain, to occur as a result of the removal or
`alteration of copyright management information.
`
`The panel affirmed the district court's rulings regarding
`discovery and costs.
`
`Counsel: 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.
`
`Judges: Before: A. Wallace Tashima and Marsha S. Berzon,
`Circuit Judges, and Robert E. Payne,*
` District Judge. Opinion by Judge Berzon.
`
`Opinion by: Berzon
`
`Opinion
`
` [*670] AMENDED OPINION
`
`OPINION
`
`BERZON, Circuit Judge:
`
`* The Honorable Robert E. Payne, United States District Judge for
`the Eastern District of Virginia, sitting by designation.
`
`Residential real estate sales today depend largely on online
`sites displaying properties for sale. Plaintiffs [**3] 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 [**4] be viewed using computer programs.
`
`Some metadata is generated automatically by cameras. The
`Exchangeable Image [*671] 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
`
` Page 5 of 12
`
`

`

`899 F.3d 666, *671; 2018 U.S. App. LEXIS 21732, **4
`
`accurate [**5] 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 [**6] 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 preexisting libraries,
`metadata attached to those images is not retained.1
`
` [*672] The Photographers2
`
`1 It is not uncommon for image processing software to fail to
`preserve metadata. Tests conducted by the Embedded Metadata
`Group in 2015 revealed that, of fifteen social media websites studied,
`eight preserved EXIF metadata and seven, including, Facebook,
`Instagram, and Twitter, did not. Some image-processing libraries,
`however, such as "ImageMagick," do read and write EXIF data, and
`thus transfer EXIF metadata to the new image file when resizing.
`
`2 Stevens' company, Affordable Aerial Photography, was named as
`
` 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' [**7] 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 [**8] 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.
`
`an additional plaintiff in the amended complaint. Affordable Aerial
`Photograph did not, however, file a timely notice of appeal from the
`district court's July 5, 2016 judgment: The Notice of Appeal filed on
`July 29, 2016 identified only Stevens and Vandel as appellants. An
`amended notice of appeal was filed several months later, on January
`26, 2017, and included Affordable Aerial Photography. That notice
`of appeal was untimely as to the July 5, 2016 judgment. See Fed. R.
`App. P. 4(a)(1). We therefore lack jurisdiction to consider the appeal
`by Affordable Aerial Photography as it relates to the July 5, 2016
`judgment. The amended notice of appeal was, however, timely as to
`the January 11, 2017 order denying the Photographers' motion to re-
`tax costs, and Affordable Aerial Photography is therefore properly a
`party as to that portion of the appeal.
`
` Page 6 of 12
`
`

`

`899 F.3d 666, *672; 2018 U.S. App. LEXIS 21732, **8
`
`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). HN1[
`] 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.
`
` [*673] 1. Section 1202(b) Requires an Affirmative
`Showing That the Defendant Knew the Prohibited Act
`Would "Induce, Enable, Facilitate, or Conceal"
`Infringement
`
`HN2[
`] 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 [**9] 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
`
`3 The Photographers' complaint also alleges a violation of 17 U.S.C.
`§ 1202(b)(2). HN3[
`] Section 1202(b)(2)
`refers
`to
`the
`"distribut[ion] or import for distribution [of] copyright management
`information knowing that the copyright management information has
`been removed or altered without authority of the copyright owner or
`the
`law." 17 U.S.C. § 1202(b)(2)
`(emphasis added). The
`Photographers do not specifically allege any instances involving the
`distribution of altered CMI separate from the distribution of the
`copyrighted photographs. As the elements of the two statutory
`provisions are otherwise indistinguishable, the Photographers have
`not plausibly stated a claim under Section 1202(b)(2) different from
`their claim under Section 1202(b)(3). We therefore discuss in the
`text only the Section 1202(b)(3) claim.
`
`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 photograph has been impaired,5
`
` someone might be able to use their photographs undetected.
`That assertion rests on no affirmative evidence at all; it simply
`identifies a general possibility that exists whenever CMI is
`removed.
`
`As we interpret Section 1202(b), this generic approach won't
`wash. HN4[
`] It is a fundamental principle of statutory
`interpretation that we must "give effect, if possible, to every
`clause and word [**10] of a statute," Montclair v. Ramsdell,
`107 U.S. 147, 152, 2 S. Ct. 391, 27 L. Ed. 431 (1883), "so that
`no part will be
`inoperative or superfluous, void or
`insignificant," Corley v. United States, 556 U.S. 303, 314, 129
`S. Ct. 1558, [*674] 173 L. Ed. 2d 443 (2009); see also Hibbs
`v. Winn, 542 U.S. 88, 101, 124 S. Ct. 2276, 159 L. Ed. 2d 172
`(2004); Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S.
`104, 112, 111 S. Ct. 2166, 115 L. Ed. 2d 96 (1991). HN5[
`]
`To avoid superfluity, the mental state requirement in Section
`1202(b) must have a more specific application than the
`universal possibility of encouraging infringement; specific
`allegations as to how identifiable infringements "will" be
`affected are necessary.
`
`At the same time, as the statute is written in the future tense,
`the Photographers need not show
`that any specific
`infringement has already occurred. Also, recognizing that
`"nothing is completely stable, no plan is beyond alteration,"
`we have previously observed that HN6[
`] statutes requiring
`
`4 As this reason is a sufficient basis for concluding that the
`Photographers' claims fail, we do not consider whether CoreLogic
`"intentionally" removed CMI, whether the Photographers presented
`sufficient evidence that the photographs contained CMI at the time
`they were uploaded, whether the Photographers impliedly licensed
`the removal of CMI, or whether CoreLogic, as a software developer,
`can be liable for third parties' use of its software.
`
`5 As noted, CoreLogic's software does preserve visible watermarks,
`which Stevens and Vandel testified they sometimes use to identify
`their photographs. Experts advise that watermarks offer a more
`reliable way of indicating copyright protection than metadata. See
`Bert P. Krages, Legal Handbook for Photographers: The Rights and
`Liabilities of Making and Selling Images 85 (4th ed. 2017)
`(recommending that photographers "put the copyright management
`information on the face of the image, such as in a watermark, rather
`than rely solely on information contained in metadata" because the
`use of image editing software to clone over a watermark is more
`likely to be seen as intentional than the removal of metadata).
`
` Page 7 of 12
`
`

`

`899 F.3d 666, *674; 2018 U.S. App. LEXIS 21732, **10
`
`knowledge that a future action "will" occur do not "require
`knowledge in the sense of certainty as to a future act." United
`States v. Todd, 627 F.3d 329, 334 (9th Cir. 2010). Rather,
`knowledge in the context of such statutes signifies "a state of
`mind in which the knower is familiar with a pattern of
`conduct" or "aware of an established modus operandi that will
`in the future cause a person to engage in" a certain act. Id.
`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 operandi", that the defendant [**11] was aware or
`had reasonable grounds to be aware of the probable future
`impact of its actions.
`
`Our conclusion about the import of the "induce[d], enable[d],
`facilitate[d], or conceal[ed]" prong is supported by the
`legislative history of Section 1202. That provision was
`enacted to implement obligations of parties to the WIPO
`Copyright Treaty ("WCT") and the WIPO Performances and
`Phonograms Treaty. See S. Rep. No. 105-190, at 5, 9 (1998).
`The initial draft of the WCT provision regarding CMI
`provided:
`Contracting parties shall make it unlawful for any person
`knowingly . . . (i) to remove or alter any electronic rights
`management information without authority; [or] (ii) to
`distribute, import for distribution or communicate to the
`public, without authority, copies of works from which
`electronic rights management information has been
`removed or altered without authority.
`
`World Intellectual Property Organization [WIPO], Basic
`Proposal for the Substantive Provisions of the Treaty on
`Certain Questions Concerning the Protection of Literary and
`Artistic Works
`to Be Considered by
`the Diplomatic
`Conference, art. 14(1), WIPO Doc. CRNR/DC/4 (Aug. 30,
`1996).
`
`the
`that
`from delegates
`requests
`to
`response
`In
`provision [**12] be modified to require a connection to an
`infringing purpose, the provision was redrafted as follows:
`
`Contracting Parties shall provide adequate and effective
`legal remedies against any person knowingly performing
`any of the following acts knowing 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 distribution, broadcast or
`communicate to the public, without authority, works or
`copies of works knowing
`that electronic
`rights
`management information has been removed or altered