Plaintiff, a commercial photographer, discovered infringing uses of his copyrighted images on the internet. Instead of pursuing the infringing parties, Plaintiff brought a lawsuit against Ice Portal, Inc. – now a division of Shiji (US), Inc. (“Shiji”) – which acts as an intermediary between the hotels that licensed Plaintiff’s photographs and online travel agents (“OTAs”) like Expedia and Travelocity.In optimizing the photographs for use by the OTAs, Shiji’s software allegedly removed certain copyright-related information that Plaintiff had embedded within the metadata of the photographs. Defendant claimed that Shiji, therefore, violated the Digital Millennium Copyright Act (“DMCA”).
 
The district court correctly granted summary judgment to Shiji because Plaintiff did not show an essential element of its claim – namely, that Shiji knew, or had reasonable grounds to know, that its actions would induce, enable, facilitate, or conceal a copyright infringement. The Eleventh Circuit affirmed. The court held that Plaintiff did not meet its burden of coming forward with sufficient evidence demonstrating Section 1202(b)’s second scienter requirement, and judgment in Shiji’s favor was therefore appropriate. 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. 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. View “Victor Elias Photography, LLC v. Ice Portal, Inc.” on Justia Law