[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21−11892

____________________

VICTOR ELIAS PHOTOGRAPHY, LLC,

Plaintiff-Appellant,

versus

ICE PORTAL, INC., 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:19-cv-62173-RS

____________________

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 1 of 24
2 Opinion of the Court 21−11892

Before NEWSOM and MARCUS, Circuit Judges, and COVINGTON,∗

District Judge.

COVINGTON, District Judge:

In 2016, commercial photographer Victor Elias discovered 

infringing uses of his copyrighted images on the internet. Instead 

of pursuing the infringing parties, Mr. Elias 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 Mr. 

Elias’s photographs and online travel agents (“OTAs”) like Expedia 

and Travelocity.1 In optimizing the photographs for use by the 

OTAs, Shiji’s software allegedly removed certain copyright-related 

information that Mr. Elias had embedded within the metadata of 

the photographs. Mr. Elias, through his company Victor Elias 

Photography, LLC (“Elias LLC”), claimed that Shiji therefore 

violated the Digital Millennium Copyright Act (“DMCA”).

The district court correctly granted summary judgment to 

Shiji because Elias LLC did not show an essential element of its

claim – namely, that Shiji knew, or had reasonable grounds to 

∗ Honorable Virginia M. Covington, United States District Judge for the 

Middle District of Florida, sitting by designation. 

1 During the relevant time periods, ICE Portal, Inc. was the company acting 

as the intermediary between the hotels and OTAs. Shiji (US), Inc. acquired Ice 

Portal in February 2019, at which time ICE Portal merged into Shiji and 

became a division of the larger company. This opinion will refer to the 

companies collectively as Shiji.

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 2 of 24
21−11892 Opinion of the Court 3

know, that its actions would induce, enable, facilitate, or conceal a 

copyright infringement. Accordingly, we affirm.

I 

A. Mr. Elias’s photographs and their CMI 

Mr. Elias is a professional photographer who specializes in 

taking photographs of hotels and resorts throughout the United 

States, Mexico, and the Caribbean. He is the sole owner and 

operator of Elias LLC. Mr. Elias registers his photographs with the 

Copyright Office, and Elias LLC holds those copyrights by written 

assignment.

Between 2013 and 2017, Mr. Elias took photographs for 

hotels owned by Starwood Hotels & Resorts Worldwide, Inc. 

(“Starwood”)2 and Wyndham Hotels & Resorts (“Wyndham”)

(collectively, the “Hotels”). Mr. Elias claims that the following 

information was inserted into the metadata within the image files 

that he sent to the Hotel properties:

Creator Victor Elias

Creator’s Job Title Owner/Photographer

Copyright Notice @Victor Elias

Creator’s Contact Info USA, 5301 N. Commerce Ave.

Suite 4, 805-265-5421

Rights Usage Terms Rights Managed

2 Starwood merged with Marriott International, Inc. in September 2016. See 

Starwood Acquisition & Historical Information, available at

https://marriott.gcs-web.com/starwood.

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 3 of 24
4 Opinion of the Court 21−11892

This information was embedded in IPTC format3 in all the images 

at issue. 

This information is commonly referred to as copyright 

management information (“CMI”).4 Because CMI is embedded 

within the image file, an individual must make several “clicks” on 

the file to access this information. Specifically, the person viewing 

the file would have to right-click on the image file and then open 

the “properties” or “more info” field to access the information.

After Mr. Elias took the photographs at issue, Elias LLC 

would extend broad licenses to the Hotels, allowing them to use 

the photographs to promote their properties in unlimited 

quantities, for an unlimited time, and in any format – without a 

restriction on how the photographs’ CMI could be manipulated or 

removed.5 The Hotels were licensed to use the photographs at 

3 IPTC format is named for the International Press Telecommunications 

Council, which developed metadata standards to facilitate the exchange of 

news, and typically includes the title of the image, a caption or description, 

keywords, information about the photographer, and copyright restrictions.

See Stevens v. Corelogic, Inc., 899 F.3d 648, 671 (9th Cir. 2018).

4 CMI metadata is specifically copyright identifying information manually 

added to the image by the photographer or editor. Shiji also refers to this 

information as “extended attributes.” At least in the context of this case, 

“extended attributes” and “CMI” are interchangeable terms.

5 Elias LLC claims that it reserved this right by including a disclaimer in the 

agreements with the Hotels that it reserved “[a]llrights not specifically granted 

in writing, including copyright” as the “exclusive property of [Elias LLC].” But 

Elias LLC does not explain how this language prevents the Hotels (or their

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 4 of 24
21−11892 Opinion of the Court 5

issue to market their properties on their own websites and on thirdparty travel booking websites or OTAs. The parties do not dispute 

that, as they were displayed on the Hotels’ own websites, the atissue photographs included Elias LLC’s CMI embedded within the 

metadata.

B. Shiji’s role 

Shiji acts as an intermediary between hotel chains, like 

Starwood and Wyndham, and OTAs by receiving copies of 

photographs from the hotels and making them available to OTAs. 

From 2013 to 2018, Shiji housed approximately 1.5 million different 

hotel images in its system. During the relevant time periods, 

Starwood and Wyndham contracted with Shiji to make images for 

thousands of their properties available to OTAs. Of the more than 

9,400 images that Shiji processed for the Hotels, 220 were taken by 

Elias. 

Between 2013 and 2018, Shiji processed photos collected 

from the Hotels in the following manner. First, Shiji’s software 

agents) from removing CMI. Moreover, Elias LLC’s argument that it reserved 

this right by requiring proper attribution of the photographs also does not 

establish that Elias LLC desired to preserve its CMI. Finally, while Elias LLC 

cites the license for the Marriott Casa Magna Resort, which provided that “[a]ll 

metadata information included within the images shall remain intact,” Shiji 

argues that Elias LLC slyly inserted that term into a new version of the licenses 

sent to Marriott upon request, without revealing that the term did not appear 

in the original licensing agreement. Elias LLC does not respond to this 

argument in its reply brief. And, in any event, Shiji never received files from 

Marriott or made images of Marriott hotel properties available to OTAs.

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 5 of 24
6 Opinion of the Court 21−11892

would download copies of image files from the Hotels’ respective 

servers and store them on Shiji’s server. Each image file provided 

to Shiji came with a separate spreadsheet file containing pertinent 

information about the image that would be displayed on the OTA 

websites, such as room type or a caption. After receiving the image 

files, Shiji’s software would then convert the files into JPEG format, 

making copies of the photos in various industry-standard sizes. The 

conversion to JPEG format optimized the image files for faster 

display on OTA websites, but it came at a cost – sometimes the 

metadata on the image file, such as the CMI, would be erased. 

Finally, the JPEG copies of the photographs would be saved on 

Shiji’s server, along with the accompanying spreadsheet file, and 

made available to OTAs.

C. Mr. Elias discovers photographs missing his CMI

Protecting his copyrights is important to Mr. Elias. He 

claims that he embedded the CMI within his photographs because 

the CMI’s text is fully searchable, allowing him to patrol the 

internet and find instances of copyright violations. As the district 

court succinctly summarized, Elias employs six methods by which 

he searches for his images and ensures that his copyright is not 

being violated:

(1) Elias visits OTA websites, types in the names of 

locations where he has shot photos of a hotel, then 

looks for the hotels he shot, and then looks for the 

images; (2) Elias Googles the hotel name plus “Victor 

Elias”; (3) Elias uses ImageRights software, which 

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 6 of 24
21−11892 Opinion of the Court 7

searches for visual image matches on the internet; (4) 

Elias uses TinEye which searches for copies of images 

he uploads; and (5) Elias uses Google images to search 

for copies of the photos. According to Elias, he also 

uses Google to search using keywords such as “Victor 

Elias” and “Victor Elias Photography,” which can 

result in the return of pages containing keywords in 

the embedded metadata.

In September 2016, using the methods described above, Mr. 

Elias discovered unauthorized copies of his photographs posted on 

non-party, non-OTA websites without his CMI. Although some of 

these photographs included visible credits, the photographs 

credited someone other than Mr. Elias. He admits that he has no 

actual knowledge of where these non-party websites obtained the 

images. Mr. Elias then discovered that on OTA websites, his CMI 

was stripped out of the images at issue.

D. Procedural History 

Based on the foregoing facts, Elias LLC filed suit against Shiji 

in August 2019. In its amended complaint, it alleged in a single 

count that Shiji violated two sections of the DMCA – 17 U.S.C. §§

1202(a) and 1202(b) – through its stripping of the CMI in Elias 

LLC’s copyrighted photos.6

6 On appeal, Elias LLC does not present any arguments pertaining to its

Section 1202(a) claim. It has therefore waived any such argument, and we will 

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 7 of 24
8 Opinion of the Court 21−11892

Following discovery, Shiji moved for summary judgment, 

and Elias LLC sought partial summary judgment. The district court 

ruled in favor of Shiji, finding that Elias LLC could not satisfy the 

“second scienter requirement” of the statute, a concept we will 

explain further below. Relying on the Ninth Circuit Court of 

Appeals’ decision in Stevens v. Corelogic, Inc., 899 F.3d 666 (9th 

Cir. 2018), the district court held that Elias LLC could not satisfy 

the second scienter requirement because it had not established that 

Shiji “knew or had reason to know that its actions would induce, 

enable, facilitate, or conceal infringement” and had failed to 

present any evidence “demonstrating that [Shiji] was aware or had 

reasonable grounds to be aware of the probable future impact of 

its actions.”

The district court reasoned that Elias LLC had failed to make 

its showing for two reasons. First, it had not shown that Shiji’s 

removal of CMI “is the reason, or even the likely reason, for the 

infringing use of the images [Mr. Elias] has found on the internet.” 

Second, Elias LLC had not shown that Shiji was even aware that 

searching for terms embedded in the extended attributes was a 

method used by copyright holders to find infringement on the 

internet. The district court also dismissed Elias LLC’s argument 

that a prior arbitration gave Shiji the requisite awareness because 

(1) it had failed to show that “mere familiarity” with the DMCA 

focus on the Section 1202(b) claim. See Lind v. United Parcel Serv., Inc., 254 

F.3d 1281, 1283 n.2 (11th Cir. 2001).

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 8 of 24
21−11892 Opinion of the Court 9

gave Shiji reason to know that removal of CMI from the photos it 

copied would induce, enable, facilitate, or conceal infringement; 

and (2) the arbitration panel ruled in Shiji’s favor, finding that the 

other party “had not shown that [Shiji’s] removal of CMI would 

result in infringement.”

Because the district court concluded that Elias LLC could 

not, as a matter of law, show that Shiji knew, or had reasonable 

grounds to know, that its actions would “induce, enable, facilitate, 

or conceal infringement,” the court entered summary judgment in 

favor of Shiji. This appeal followed.

II 

We review a district court’s grant of summary judgment de 

novo, employing the “same legal standards that bound the district 

court.” Bonanni Ship Supply, Inc. v. United States, 959 F.2d 1558, 

1561 (11th Cir. 1992).

Summary judgment is proper where “there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is 

“material” only if it has the potential to affect the outcome of the 

case, and a dispute is “genuine” only if a reasonable jury could 

return a verdict for the non-moving party. Shaw v. City of Selma, 

884 F.3d 1093, 1098 (11th Cir. 2018). When the non-moving party 

has failed to prove an essential element of its case, summary 

judgment is appropriate. Am. Fed’n of Labor & Congress of Indus. 

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 9 of 24
10 Opinion of the Court 21−11892

Orgs. v. City of Miami, 637 F.3d 1178, 1186–87 (11th Cir. 2011) 

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

III 

A. The DMCA and Section 1202(b)’s second 

scienter requirement 

Congress enacted the DMCA in 1998 “to strengthen 

copyright protection in the digital age.” Mango v. BuzzFeed, Inc.,

970 F.3d 167, 170–71 (2d Cir. 2020). The DMCA provision pertinent 

to this case provides as follows:

(b) Removal or alteration of copyright management 

information. – No person shall, without the authority 

of the copyright owner or the law – 

(1) intentionally remove or alter any 

copyright management information, [or]

. . . 

(3) distribute, import for distribution, or 

publicly perform works, copies of works, or 

phonorecords, knowing that copyright 

management information has been removed 

or altered without authority of the copyright 

owner or the law,

knowing, or . . . having reasonable grounds to know, 

that it will induce, enable, facilitate, or conceal an 

infringement of any right under this title.

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 10 of 24
21−11892 Opinion of the Court 11

17 U.S.C. § 1202(b).7 

Interpretation of Section 1202(b) is an issue of first 

impression in this Circuit. We start, as always, with the language 

of the statute. Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000) 

(en banc) (“We begin our construction of [a statutory provision] 

where courts should always begin the process of legislative 

interpretation, and where they should often end it as well, which is 

with the words of the statutory provision.”). If the statute’s 

language is plain, then the sole function of the court is to enforce 

the statute according to its terms. Gonzalez v. McNary, 980 F.2d 

1418, 1420 (11th Cir. 1993). A statute should be construed to give 

effect to all its provisions, “so that no part of it will be inoperative 

or superfluous, void or insignificant.” Calzadilla v. Banco Latino 

Internacional, 413 F.3d 1285, 1287 (11th Cir. 2005).

By its plain terms, the statute requires proof that the 

defendant knew, or had reasonable grounds to know, that its 

conduct “will” induce, enable, facilitate, or conceal an 

infringement. Use of the word “will” indicates a degree of 

likelihood or certainty. See Spokane Cnty. v. Dep’t of Fish & 

Wildlife, 430 P.3d 655, 662 (Wash. 2018) (canvassing multiple 

dictionaries for definitions of the term “will,” and explaining that it 

“can be a statement of future tense, of strong intention or assertion 

about the future, or a probability or expectation about something,” 

7 The statute also defines “copyright management information,” and Shiji 

does not contest that the CMI here falls within the statutory definition.

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 11 of 24
12 Opinion of the Court 21−11892

although it can also mean “inevitability” or “probability” (citations 

and quotation marks omitted)). The statute does not state that a 

violation occurs if a defendant knows, or has reason to know, that 

its actions “may” or “might” enable infringement. As we explain 

further below, the statute requires more than that. 

To assist in interpreting the statute, we may also look to the 

opinions of our sister Circuits. The Second Circuit has held that, to 

establish a violation of Section 1202(b)(3), a plaintiff must prove: 

(1) the existence of CMI in connection with a copyrighted work; 

and (2) that a defendant “distribute[d] . . . works [or] copies of 

works”; (3) while “knowing that copyright management

information has been removed or altered without authority of the 

copyright owner or the law”8; and (4) while “knowing or . . . having 

reasonable grounds to know” that such distribution “will induce, 

enable, facilitate, or conceal an infringement.” Mango, 970 F.3d at 

171. The last two of these elements comprise a “so-called ‘doublescienter requirement.’” Id. “[T]he defendant . . . must have actual 

knowledge that CMI ‘has been removed or altered without 

authority of the copyright owner or the law,’ as well as actual or 

constructive knowledge that such distribution ‘will induce, enable, 

facilitate, or conceal an infringement.’” Id. (quoting 17 U.S.C. §

1202(b)(3)); see also Stevens, 899 F.3d at 673 (explaining that both 

8 Shiji maintains that it did not intentionally or knowingly remove the CMI 

from the photographs. We need not address this first scienter requirement 

because we can affirm the district court’s grant of summary judgment for

failure to demonstrate the second scienter requirement.

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 12 of 24
21−11892 Opinion of the Court 13

Section 1202(b)(1) and (3) “require the defendant to possess the 

mental state of knowing, or having a reasonable basis to know, that 

his actions ‘will induce, enable, facilitate, or conceal’ 

infringement”).

We agree with our sister Circuits’ interpretation of the plain 

language9 of Section 1202(b)(1) and (3) and with their formulation 

of the scienter requirement necessary to prove a violation thereof. 

As the Ninth Circuit explained in Stevens:

To avoid superfluity, the mental state requirement in 

Section 1202(b) must have a more specific application 

than the universal possibility of encouraging 

infringement; specific allegations as to how 

identifiable infringements “will” be affected are 

necessary.

. . .

[W]e hold that a plaintiff bringing a Section 1202(b) 

claim must make an affirmative showing, such as by 

demonstrating a past “pattern of conduct” or “modus 

operandi,” that the defendant was aware [of] or had 

reasonable grounds to be aware of the probable 

future impact of its actions.

Stevens, 899 F.3d at 674.

9 The Ninth Circuit in Stevens cogently explained why its interpretation of the 

statute is also supported by the legislative history of Section 1202. See Stevens, 

899 F.3d at 674–75. We need not repeat that legislative history here. See 

Harris, 216 F.3d at 976 (explaining that “[w]hen the import of words Congress 

has used is clear . . . we need not resort to legislative history”).

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 13 of 24
14 Opinion of the Court 21−11892

Elias LLC urges this Court to adopt a standard by which a 

defendant that knowingly removes CMI without consent can be 

held liable so long as the defendant knows, or has reasonable 

grounds to know, that its actions “make infringement generally 

possible or easier to accomplish.” By contrast, Shiji argues, as the 

district court held, that the defendant must know, or have 

reasonable grounds to know, that removing CMI would likely lead 

to future infringement.

The Ninth Circuit in Stevens, facing a similar fact pattern to 

the one now before us, rejected the statutory interpretation 

favored by Elias LLC. The plaintiffs there, also photographers 

whose CMI had allegedly been removed by an intermediary 

software provider, argued that “because one method of identifying 

an infringing photograph has been impaired, someone might be 

able to use their photographs undetected.” 899 F.3d at 673

(emphasis in original). The court explained that such a general 

approach to statutory interpretation “won’t wash.” Id. Citing the 

text of the statute and the legislative history of Section 1202, the 

Ninth Circuit concluded that plaintiffs must “provide evidence 

from which one can infer that future infringement is likely, albeit 

not certain, to occur as a result of the removal or alteration of 

CMI.” Id. at 675.

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 14 of 24
21−11892 Opinion of the Court 15

B. Whether Shiji knew, or had reasonable grounds to know, 

that its actions would induce, enable, facilitate, or conceal 

infringement 

Before the district court and on appeal, Elias LLC points to 

three pieces of evidence that, it claims, create a genuine dispute of 

material fact as to whether Shiji knew or had reason to know that 

its actions “will induce, enable, facilitate, or conceal infringement” 

of copyrighted works. We examine each in turn.

1. The Leonardo arbitration

In urging us to reverse the district court’s grant of summary 

judgment, Elias LLC’s principal piece of evidence is a 2016

arbitration proceeding between Shiji and a competitor in the OTA 

photo distribution business, Leonardo Worldwide Corporation.10 

The dispute began when two of Leonardo’s clients were looking to 

switch photo management services to Shiji (at the time, ICE 

Portal). In the arbitration, Leonardo accused Shiji of corporate 

infiltration and theft. It claimed that Shiji improperly accessed 

Leonardo’s image database, downloaded multiple images from the 

database without Leonardo’s consent, processed those images 

through Shiji’s own software (thereby scrubbing the images of CMI 

inserted by Leonardo), and then re-published the images on Shiji’s 

10 The record on appeal included an interim dispositive order issued by the 

arbitration panel and certain deposition excerpts, but no other underlying 

evidence. Thus, we will present the facts and holdings as set forth in the 

arbitration order. 

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 15 of 24
16 Opinion of the Court 21−11892

own website for financial gain. According to Leonardo, Shiji’s 

actions of removing CMI from the images or distributing the 

images knowing they were cleansed of CMI violated Section 

1202(b) of the DCMA because they “induced, enabled, facilitated, 

or concealed [Shiji’s] infringement of the copyrighted images.” 

Importantly, the DMCA claim rested on Leonardo’s insertion of its 

own CMI into images that were owned by third-party hotels, not 

Leonardo.

The arbitration panel dismissed the DMCA claim on 

multiple grounds: (1) “Leonardo has not shown the essential 

ingredient of a DMCA claim that any allegedly improper actions 

regarding CMI would result in an infringement of a copyright”; (2) 

the panel construed Section 1202(b) as requiring that a DMCA

claimant be both the owner of the copyright and the party who 

inserted the wrongly removed CMI, and Leonardo was not both

because it was not the copyright owner; (3) Shiji’s removal of 

Leonardo’s CMI did not result in an infringement of any hotel 

copyrights; and (4) Leonardo lacked standing because the DMCA 

is intended to protect copyright holders that have employed CMI, 

and Leonardo had no copyright in the stolen images.

According to Elias LLC, Leonardo’s claims in the arbitration 

“put [Shiji] on notice and imbued [Shiji] with the necessary mental 

state to violate § 1202 in the future where, as here, [Shiji’s] 

metadata stripping system was challenged by [a] copyright owner.” 

In other words, while Leonardo’s lack of copyright ownership may 

have left its DMCA claim dead in the water, it was reasonably 

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 16 of 24
21−11892 Opinion of the Court 17

foreseeable to Shiji that another litigant (who is a copyright owner) 

could assert similar claims against Shiji in the future. This is a

tempting inference to make, but it is insufficient to raise a genuine 

issue of material fact as to the second scienter requirement for 

several reasons.

First, the facts of the Leonardo arbitration are 

distinguishable. There, Shiji went farther than simply running 

images through its automated software and making those 

optimized images available on its server. Rather, it allegedly 

accessed, knowingly and without permission, a competitor’s 

database of copyrighted images, put those images through the 

scrubber, and then re-published them for direct financial gain. 

Therefore, “Leonardo allege[d] that [Shiji’s] actions induced, 

enabled, facilitated, or concealed [Shiji’s own] infringement of the 

copyrighted images.” (emphasis added). The Leonardo arbitration 

had nothing to do with whether Shiji’s role as an intermediary 

image optimizer might induce or enable infringement by a third 

party. 

Second, and more importantly, the record before us does 

not indicate that the Leonardo arbitration adduced any facts that 

would give Shiji reason to know that its software’s effects on CMI 

would make copyright infringement “likely, albeit not certain” to 

occur. At most, the 2016 Leonardo arbitration gave Shiji 

knowledge that its software was scrubbing CMI from some of the 

extended attributes of the images – and, in fact, different extended 

attributes than the ones at issue here. But there is no evidence that 

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 17 of 24
18 Opinion of the Court 21−11892

Shiji learned, for example, that copyright owners routinely rely on 

embedded CMI to police infringements of their works on the 

internet or that would-be infringers prefer to utilize images from 

OTAs because they have already been cleansed of CMI. 

Third, it may have been reasonable for Shiji to presume, in 

the wake of the Leonardo arbitration, that the next DMCA lawsuit 

it faced would come from a copyright owner. But it does not follow 

that Shiji must have also known that it was engaging in conduct 

that violated the law. We do not hold here that prior litigation or

arbitration of a DMCA claim can never give a defendant the 

requisite knowledge under Section 1202(b). We limit our holding 

to an affirmation of the district court’s conclusion that Leonardo’s 

particular accusations in this case did not give Shiji reasonable 

grounds to know that its software’s removal of CMI, and the 

subsequent distribution of photographs stripped of CMI, would 

induce, enable, facilitate, or conceal the infringement of Elias 

LLC’s copyrighted works.

For these reasons, the Leonardo arbitration fails to create a 

genuine issue of material fact as to whether Shiji knew, or had 

reasonable grounds to know, that its actions of stripping CMI and 

distributing those stripped images would “induce, enable, facilitate, 

or conceal an infringement.” See Stevens, 899 F.3d at 676 (“Because 

the [plaintiffs] have not put forward any evidence that [the 

defendant] knew its software carried even a substantial risk of 

inducing, enabling, facilitating, or concealing infringement, let 

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 18 of 24
21−11892 Opinion of the Court 19

alone a pattern or probability of such a connection to infringement, 

[the defendant] is not liable for violating [the DMCA].”).

2. Mr. Elias’s purposeful insertion of CMI into images

Elias LLC claims that, unlike the photographer-plaintiffs in 

Stevens, Mr. Elias did use the CMI contained within the images’ 

extended attributes to police copyright infringement on the 

internet. This also fails to clear the summary judgment bar.

There is no indication in the record that Shiji knew at the 

relevant time that copyright owners use CMI in this manner. Elias 

LLC therefore cannot show that Shiji knew or had reason to know 

that removal of CMI could conceal an infringement. And Elias LLC 

cannot explain how it could police copyright infringement if an 

infringer can just as easily remove CMI metadata from an image as 

it could download an image from an OTA website. See Stevens, 

899 F.3d at 676 (explaining that “a party intent on using a 

copyrighted photograph undetected can itself remove any CMI 

metadata, precluding detection through a search for the metadata. 

. . . [Thus,] one cannot plausibly say that removal by a third party 

‘will’ make it easier to use a copyrighted photograph undetected”).

Elias LLC argues that the district court read requirements 

into Section 1202(b) that do not exist – namely, that it prove 

“keyword searches” are an effective method for finding 

infringement and/or that Shiji be aware that copyright owners will 

search for keywords embedded in the metadata to find 

infringement on the internet. Elias LLC misunderstands the district 

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 19 of 24
20 Opinion of the Court 21−11892

court’s order. The district court did not impose additional, extrastatutory requirements; rather, it was explaining why Elias LLC’s 

method of proving knowledge was ineffective. Similarly, neither 

the district court nor the Ninth Circuit imposed an additional 

requirement that the plaintiff show evidence of a pattern of 

conduct or modus operandi. Consistent with Stevens, the district 

court explained that demonstrating past patterns of conduct or 

modus operandi are examples of ways in which plaintiffs can meet 

their burden of proof. See Stevens, 899 F.3d at 675 (“There are no 

allegations, for example, of a ‘pattern of conduct’ or ‘modus 

operandi’ involving policing infringement by tracking metadata.”). 

Elias LLC could have provided different evidence to show that Shiji 

possessed the requisite level of knowledge to satisfy the second 

scienter requirement, but it did not.

3. Instances of infringement on the internet

According to Elias LLC, Shiji allegedly has a modus operandi

of removing a photographer’s CMI “knowing that CMI [being 

removed] has likely directly resulted in infringement of the Elias 

Images.” In support of this argument, Elias LLC pointed to the 

infringing images that Mr. Elias found on non-party websites that 

had been stripped of his CMI. 

There is a fundamental problem with this argument – there 

is no evidence linking Shiji’s actions of removing the photographs’

CMI with the instances of infringement Mr. Elias uncovered on the 

internet. See Stevens, 899 F.3d at 675 (explaining that to prevail, a 

plaintiff must “provide evidence from which one can infer that 

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 20 of 24
21−11892 Opinion of the Court 21

future infringement is likely, albeit not certain, to occur as a result 

of the removal or alteration of CMI” (emphasis added)). Elias LLC

argues that the at-issue photographs on the OTA websites have 

been stripped of CMI, and the infringing images he found on nonparty websites have also been stripped of CMI; therefore, the 

infringing parties must have pulled the images from OTA websites. 

But this argument rests on speculative and unsupported 

assumptions. For example, the argument presumes that infringing 

parties would go to an OTA website (instead of the Hotels’ or Elias 

LLC’s own website) to copy the image. It also presumes that an 

infringing party would download the image, as opposed to taking 

a screenshot or screengrab11 of the image. Yet nothing in the 

record substantiates these inferences. For example, Mr. Elias

admitted that he did not know from which website the third-party 

infringers copied the images. It is also unclear how the infringing 

parties copied the images – anyone with a smart phone could 

simply take a screenshot of the photograph from a website, which 

process inherently does not preserve the photograph’s embedded

CMI. Similarly, Mr. Elias acknowledged that unscrupulous 

infringers could easily remove CMI themselves. 

Here, Elias LLC produced evidence, essentially, that his 

CMI-cleansed photographs appeared in at least two places on the 

11 A screengrab or screenshot is essentially a digital picture of the image on 

the screen. When an individual takes a screenshot of the picture, the metadata 

of the underlying picture is not carried through with the screenshot.

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 21 of 24
22 Opinion of the Court 21−11892

internet: OTA websites and certain non-party websites that are 

unaffiliated with the OTAs. We do not believe that Congress 

meant to impose liability under the DMCA based on such a 

tenuous connection. See Stevens, 899 F.3d at 673 (rejecting liability 

when an infringer “might” be able to use copyrighted works 

undetected because such an assertion “simply identifies a general 

possibility that exists whenever CMI is removed”). The district 

court was correct to grant summary judgment in the face of such 

speculation. See Josendis v. Wall to Wall Residence Repairs, Inc., 

662 F.3d 1292, 1318 (11th Cir. 2011) (“At the summary judgment 

stage, such ‘evidence,’ consisting of one speculative inference 

heaped upon another, [is] entirely insufficient.”).

Elias LLC argues that this reasoning requires a Section 

1202(b) plaintiff to show a specific and identifiable infringement. 

Not so. What the statute requires is a showing that a defendant 

took certain actions, such as wrongly removing CMI or distributing 

images wrongly scrubbed of CMI, (1) knowing that the CMI has 

been wrongly removed or altered, and (2) knowing or having 

reason to know that such removal or distribution “will induce, 

enable, facilitate, or conceal an infringement.” See 17 U.S.C. § 

1202(b)(3); see also Mango, 970 F.3d at 171 (setting forth the 

elements of a Section 1202(b)(3) claim). 

What’s more, we agree with the Ninth Circuit that the 

statute’s use of the future tense does not require a plaintiff to show 

that any specific infringement has already occurred and does not 

“require knowledge in the sense of certainty as to a future act.” 

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 22 of 24
21−11892 Opinion of the Court 23

Stevens, 899 F.3d at 674 (citation omitted) (emphasis added). Elias 

LLC is thus incorrect that the district court required it to show that

Shiji’s CMI removal “be directly linked to a particular 

infringement.” Elias LLC chose to frame its DMCA claim in terms 

of proving that actual infringement occurred (and therefore that 

infringement was allegedly induced or enabled). We, and the 

district court before us, therefore, grapple with the evidence 

presented by Elias LLC to determine whether Shiji was the inducer 

or enabler. Elias LLC cannot make that showing because the 

evidence indicates that the infringing parties could have purloined 

these images from any number of sources, and Elias LLC has 

identified no evidence indicating that Shiji’s distribution of these 

photographs ever “induce[d], enable[d], facilitate[d], or conceal[ed] 

an infringement.” 

In short, 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. See Stevens, 899 F.3d at 673, 674 (finding that a mere 

showing of CMI removal, leading to the possibility that an infringer 

could use the photos undetected, is insufficient to meet Section 

1202(b)’s second scienter requirement because “it simply identifies 

a general possibility that exists whenever CMI is removed” and 

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 23 of 24
24 Opinion of the Court 21−11892

“Section 1202(b) must have a more specific application than the 

universal possibility of encouraging infringement”). This reading 

would effectively collapse the first and second scienter 

requirements. Congress enunciated the double scienter 

requirement for a reason, and we must interpret the statute to 

effectuate that intent. See CBS Inc. v. PrimeTime 24 Joint Venture, 

245 F.3d 1217, 1222 (11th Cir. 2001) (“The rule is that we must 

presume that Congress said what it meant and meant what it said.” 

(quotation marks omitted)).

IV 

For the reasons stated, we conclude that the district court 

properly granted summary judgment to Shiji on Elias LLC’s claim 

under the DMCA. Elias LLC 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. Accordingly, we affirm.

AFFIRMED. 

USCA11 Case: 21-11892 Date Filed: 08/12/2022 Page: 24 of 24