On August 12, 2022, in the case Victor Elias Photography v. Ice Portal, Inc., the US Court of Appeals for the Eleventh Circuit upheld the decision of the US District Court for the Southern District of Florida, holding that the respondent did not violate 17 U.S.C. 1202(b) because the litigant had no idea, or had reasonable grounds to believe that they had no reason to know, that the removal of copyright management information (CMI) would induce, enable, facilitate, or conceal a copyright infringement.
Victor Elias is a skilled photographer with experience in taking pictures of hotels and resorts. Elias registered his photos with the Copyright Office, and Elias LLC, his company, held the copyrights through a written assignment.
Between 2013 and 2017, Elias took pictures for motels owned by Wyndham Hotels and Resorts as well as Starwood Hotels and Resorts Worldwide, Inc. (Hotels). The metadata for each photo was embedded with CMI. After the photos were taken, Elias LLC extended broad licenses to the hotels, allowing them to use the photos to promote their facilities for an unlimited amount of time, with an unlimited number of attributes, and in any organisation. The licences made no mention of how the CMI could be modified or removed.
Shiji (US), Inc. is an intermediary between a hotel chain and an online travel agent (OTA) like Expedia or Travelocity. Shiji contracted with the Hotels to make images for their properties available to OTAs.
Elias took 220 of the 9,400 photos that Shiji managed for the Hotels. To develop the photos taken from the Hotels, Shiji would:
• Make copies of image documents and store them on Shiji's server after downloading them from the hotel's server.
• To simplify the images for quicker display on OTA sites, convert them to JPEG format.
• Store the modified JPEG copies on the Shiji server so that OTAs can access them.
The document's metadata, like the CMI, may occasionally be erased during the transformation stage. Elias discovered unauthorised copies of his photos that had been published on non-OTA websites without his CMI in September 2016. Additionally, he discovered images on OTA sites that were missing his CMI from the image documents.
In the Southern District of Florida, Elias filed a lawsuit against Shiji in August 2019 alleging two violations of the Digital Millennium Copyright Act (DMCA):
• CMI misrepresentation (17 U.S.C. 1202(a)).
• CMI removal or modifi (17 U.S.C. 1202(b)).
Elias searched for an incomplete outline decision while Shiji pushed for a rundown ruling. The district court ruled in favour of Shiji and stated that Elias LLC:
• Could not satisfy the DMCA's second scienter requirement.
• Had not made it clear that Shiji knew or had reason to believe that its actions would encourage invasion or seek to cover it up.
• Failed to present any evidence showing Shiji was aware of—or had a good reason to be aware of—the potential consequences of its actions in the future.
The Eleventh Circuit focused on Elias' Section 1202(b) claim as a first-impressions issue during the appeal process. The court discovered after reading Section 1202(b) that the law demands an affirmative demonstration that the defendant knew, or had good reason to believe that it knew, that its actions will cause, permit, facilitate, or hide copyright infringement.
On the basis of this view, the Eleventh Circuit upheld the district court's judgement, stating:
• The double-scienter criterion of the DMCA calls for evidence that a defendant:
• is aware that CMI has been altered or removed without the owner's permission or as required by law;
• is aware or should be aware that sharing copyrighted content will result in, enable, facilitate, or hide an infringement even after CMI is removed.
• In Section 1202(b), the word "will" denotes a degree of probability or certainty.
• According to the statute's plain language, there must be a clear link between the defendant's acts and the violation or potential violation.
• Because there was no evidence in the record that Shiji was aware at the time that Elias used CMI to police copyright infringement, Elias LLC was unable to demonstrate that Shiji knew or had reason to know that removal of the CMI could conceal an infringement.
• Elias' discovery of the infringement could not be connected to Shiji's removal of the CMI.
In light of this judgement it is recommended that the metadata itself should include information that CMI shouldn't be removed as it is used by the copyright owner to enforce his (copy)rights.
It can be inferred that the ruling suggests that photographers and other digital creators who license their work should include explicit language in their agreements prohibiting removal of CMI.