United States: Real Estate Photography On Websites – How To Protect Against Digital Millennium Copyright Act Claims

The U.S. District Court for the Southern District of California recently granted summary judgment to defendant CoreLogic, Inc., in a Digital Millennium Copyright Act (DMCA) case involving real estate listings on a multiple listing service (MLS). Real estate businesses, especially brokers, should take note and ensure that their handling of photographs and other copyrighted information won’t lead to similar claims.

Real estate photographers brought a putative class action case against CoreLogic, a software developer which provides MLS software, claiming that CoreLogic violated the DMCA because its software removed metadata, including copyright management information (CMI), from photographs uploaded to the MLS. CMI includes information such as the copyright owner’s name, the title of the work, and the terms and conditions for the use of the work. The DMCA protects the integrity of CMI and provides for damages if the CMI is altered or removed under certain conditions. The statute provides that a person may not knowingly, with the intent to “induce, enable, facilitate, or conceal infringement,” provide or distribute false CMI. The statute also states that a person may not, without the authority of the copyright owner, intentionally remove or alter CMI, distribute CMI knowing that it has been removed or altered, or distribute works or copies knowing that CMI has been removed or altered.

Analysis:

Although the court ruled for the defendant in this case, real estate clients, especially brokers, should review their procedures and software to determine how CMI is handled. Brokers should also ensure that they have the rights to any content they upload into an MLS. As we have seen in other contexts (such as the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act), plaintiffs’ lawyers are becoming increasingly active in bringing class action cases involving online activities, and real estate clients should proactively pursue protective measures to reduce risk.

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