Photographers denied rehearing of copyright infringement by real estate listing service

By Daniel Beauregard | Aug 13, 2018

SAN FRANCISCO – The the 9th U.S. Circuit Court of Appeals recently denied a request for a rehearing from two photographers who lost their copyright infringement claim against a real estate listing service.

In its Aug. 6 ruling, the 9th U.S. Circuit Court of Appeals affirmed the U.S. District Court for the Southern District of California's judgment in favor CoreLogic, a real estate listing service that was the defendant in the copyright infringement suit.

“Because the photographers have not put forward any evidence that CoreLogic knew its software carried even a substantial risk of inducing, enabling, facilitating, or concealing infringement, let alone a pattern or probability of such a connection to infringement, CoreLogic is not liable,” U.S. Circuit Judge Marsha Berzon wrote in the opinion.

The ruling stems from a 2014 complaint by photographers Robert Stevens and Steven Vandel who accused CoreLogic of using their photographs in violation of the Digital Millennium Copyright Act.

The photographers claimed the real estate service removed metadata from photographs. According to court documents, after receiving the initial complaint, CoreLogic retooled its software to make sure metadata wasn’t removed. However, the plaintiffs claimed that the software continued to remove the information during image processing.

In the ruling, the appeals court found the photographers could not prove the company knowingly and purposefully concealed such information.

“The photographers have not offered any evidence to satisfy that mental state requirement," Berzon wrote. "Their primary argument is that, because one method of identifying an infringing photograph has been impaired, someone might be able to use their photographs undetected."

U.S. Circuit Judge A. Wallace Tashima and Robert E. Payne, U.S. District judge for the Eastern District of Virginia, sitting by designation on the Ninth Circuit, concurred.

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