Many digital file formats allow creators to embed additional data to provide details of ownership or any other relevant information.
This metadata might include the name of the person who created the file but it can be much more comprehensive. Photographs may carry metadata identifying the exact location where they were taken, while MP3 files could include the title, artist, album, track number, and BPM, to name just a few possibilities.
This metadata can be useful to copyright holders, from conveying something as simple as their name and website address to management and monitoring functions. The problem is that metadata can be removed, so once third parties have access to a file, all bets are off.
The DMCA recognizes metadata (and other related marks) as Copyright Management Information (CMI) when “conveyed in connection with” a creative work. 17 U.S. Code § 1202 prohibits the intentional removal of CMI without obtaining permission from the copyright owner, when it is known that will “induce, enable, facilitate, or conceal an infringement.”
CMI Claims Against YouTube
A class action lawsuit filed by musician Maria Schneider against YouTube contains many copyright infringement allegations, including claims relating to CMI. While YouTube denies them all, at some point the CMI matter will need to be addressed.
In a 2017 blog post, Schneider described YouTube as a Wood Chipper on Steroids, complaining that when MP3s are uploaded to YouTube, they are converted into a different format and in the process, all metadata – Copyright Management Information – is lost.
“To strip CMI metadata ‘knowingly,’ or to distribute such works knowing CMI has been stripped, is potentially criminal under the law,” Schneider wrote.
“But until there is an actual court case on this issue, YouTube will continue to strip away metadata from literally billions of files, like a power chipper on steroids.”
Schneider ultimately took YouTube to court over its removal of CMI, but other cases dealing with similar issues were concluded first. One is of particular interest.
Photographer’s CMI Erased
Victor Elias specializes in hotel and resort photography. Between 2013 and 2017, Elias took photographs of hotels and licensed their owning companies to use them in promotional activities. All of the photographs contained embedded metadata, i.e Copyright Management Information.
The owners of the hotels later made the licensed images available to another company, Ice Portal, to facilitate their appearance on travel agents’ websites for promotional purposes. As part of that process, the original images were downloaded from the hotels’ servers and converted to a faster-loading format used by the travel agents.
The conversion from one format to another meant that metadata was sometimes lost. This meant that images on the travel agents’ websites didn’t always contain CMI as Elias intended. Copies of his images also appeared on other websites, again without the metadata.
Copyright Lawsuit, Violations of DMCA
In 2019, Elias sued Ice Portal (owned by Shiji Group) in a Florida district court for violations of the DMCA under 17 U.S. Code § 1202(a) and (b).
Ice Portal/Shiji’s motion for summary judgment was successful. Elias failed to show that Shiji knew, or should have reasonably known, that its actions (removal of CMI) would “induce, enable, facilitate, or conceal a copyright infringement.”
The US Court of Appeals for the Eleventh Circuit agreed, noting that liability under the DMCA is reliant on two factors – that the defendant knew that CMI had been removed and also knew that the removal would either cause or conceal an instance of future infringement.
“The court explained that the statute’s plain language requires some identifiable connection between the defendant’s actions and the infringement or the likelihood of infringement,” Stanford Libraries explains.
“To hold otherwise would create a standard under which the defendant would always know that its actions would ‘induce, enable, facilitate, or conceal’ infringement because distributing protected images wrongly cleansed of CMI would always make infringement easier in some general sense.”
Implications Moving Forward
A Bloomberg Law report says the Eleventh Circuit adopted a “heightened standard” towards CMI, with Trace Jackson, an intellectual property attorney at Rogers Towers, offering his understanding of what that means.
“It has to be the case that the person stripping the photograph of the CMI knows of some specific infringement that will or may occur because of that,” the attorney told Bloomberg Law.
Jackson believes the nature of the platform where the content was published could also provide guidance. Removing a photo’s CMI and putting it on a travel agent’s website would be different from placing it on “some website labeled ‘free public domain pictures here,’ where you’re kind of asking for infringement.”
Jackson also believes that to protect artists’ interests, future licensing agreements should carry clear language that prohibits the removal of CMI.
Copyright Management Information is protected under the DMCA for a reason but Schneider’s claims against YouTube won’t have been helped by the Eleventh Circuit’s affirmation of the lower court’s ruling in the Elias matter.
The Eleventh Circuit opinion can be found here (pdf)
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In Maria Schneider’s CMI article she talks about the moral rights of artists, including the right to attribution and the right of integrity. Few people would argue against these fundamentals and their importance to an artist’s identity. But artists have another basic right – the freedom to choose who to do business with. When business partners refuse to meet problems half way, another business partner might be a better option.
