DMCA Adverse-Inference Request Rejected as Improper Request for Variation on Res Ipsa Loquitur

After defendant failed to preserve a “native copy” of the allegedly infringed photograph, the court denied plaintiff’s request for an adverse inference sanction that defendant removed the copyright management information from the photograph. “First, there is no record of what litigation Plaintiff threatened in his cease and desist letter because Plaintiff redacted most of its contents before filing it in the record. Thus, the Court cannot determine that Defendant had a particular obligation to preserve a digital copy of the [allegedly infringed] photograph file at that time. Even if the Court assumes he complained of infringement of his copyright in the . . . photograph in violation of 17 U.S.C. § 502, prompting Defendant to remove the . . . photograph from its website, there is no evidence that Plaintiff complained of the removal of any copyright management information actionable under 17 U.S.C. § 1202. . . . Further, Plaintiff offers no evidence—lay or opinion—of what information might have been gleaned from a digital copy of the file that would be relevant to an issue at trial and is not already available to him. He believes that the ‘image that [defendant] used specifically can tell us whether or not the metadata was removed[,]⁠’ but offers no suggestion of how that might be. . . . He would have this Court create a variation on res ipsa loquitur, such that posting a copy of an image without copyright management information speaks for itself–that the posting party must have removed it.”

Philpot v. LM Communications II of South Carolina, Inc., 5-17-cv-00173 (KYED 2018-07-10, Order) (Claria Horn Boom)

2018-07-12T11:45:03+00:00July 12th, 2018|Copyright, Docket Report|