The genesis of this post is a recent copyright infringement case we handled that dealt with a relatively unexplored corner of the Digital Millennium Copyright Act (“DMCA), defendant’s removal of copyright management information (CMI) and the statutory damages that arise from that DMCA violation.
Three DMCA Issues that Divide the Courts
In researching the DMCA claims, we noted that three issues have divided the courts:
(a) is CMI as defined in §1202 of the DMCA restricted to digitally encoded information contained in an automated copyright protection or rights management system or does CMI extend to any identifying information about a copyrighted work, digital or not;
(b) does the DMCA only protect CMI if it’s on the face of a copyrighted work or does protection include CMI that is elsewhere on the page where the work appears; and
(c) what constitutes a violation of the DMCA for purposes of computing statutory damages.
This post will focus on the first issue with a later post dealing with the balance.
Is Non-Digital As Well As Digital-Encoded CMI Protected by the DMCA?
Let’s now deal with the scope of protectable CMI.
The CMI provisions Congress enacted appear on their face to apply to identifying information about a work whether the information is conveyed in digital or non-digital form. But in IQ Group. v. Wiesner, the District of New Jersey held that information, such as the name of the author of a work, is not CMI unless it is in digital form and functions as part of an automated copyright protection or management system. In other words, in IQ’s view, if a defendant were to remove a printed authorship credit from a photograph before posting that photo on a website, that conduct would not violate § 1202 even though the credit would appear to be protected under that section.
IQ Group neither defined an acceptable form of digital CMI nor articulated the types of automated copyright protection or management systems in which the digital CMI would function. IQ Group only said that § 1202 “should not be construed to cover copyright management information performed by people” but instead should be “construed to protect copyright management performed by the technological measures of automated systems.” Thereafter, Textile Secrets v. Ya-Ya Brand suggested that a “bar code or other marker that could be electronically scanned” might qualify as CMI.
But a number of district courts, including Agence France v. Morel, found IQ Group’s narrow interpretation of CMI “directly at odds with the broad definition set forth in the statutory text itself.” Agence followed Assoc. Press v. All Headline News, which reasoned that, when a statute’s language is clear, courts in the 2d Circuit “do not resort to legislative history to cloud a statutory text” but instead enforce a statute “according to its terms.” Accordingly, Agence held the authorship credits a photographer had placed adjacent to his photographs were protectable CMI whether in digital form or not.
The Third Circuit Protects Any CMI
The debate whether CMI is limited to digital information has now been settled at least in the Third Circuit by Murphy v. Millennium Radio. It read §1202(c) to extend to any CMI if placed manually or embedded digitally on a copyrighted work. The court stated the “statute imposes no explicit requirement that such information be part of an ‘automated copyright protection or management system’ … In fact, it [the statute] appears to be extremely broad, with no restrictions on the context in which such information must be used in order to qualify as CMI.
The court added that defendants “are essentially asking us to rewrite §1202 to insert a term — that is, ‘automated copyright protection or management system’ — which appears nowhere in the text of the DMCA and which lacks a clear definition.” Thus under Murphy, any CMI conveyed in connection with a copyrighted work, regardless of its form, may trigger a DMCA claim if that CMI is falsified or removed.
This decision makes sense and I suspect will be followed in other circuits. The face of § 1202 never narrowed CMI to digital information. As Murphy recognized, where the text of a statute is unambiguous, courts enforce the statute as written.
The Future of CMI Litigation
Will Murphy open the floodgates to CMI litigation? I think the answer is no. That’s because plaintiff must meet a high standard of proof to successfully prosecute a CMI claim. Plaintiff will have to show that defendant was contemplating copyright infringement when it removed or distributed the information without the required CMI. In the words of the statute, plaintiffs must demonstrate that, when defendant knowingly distributed false CMI that enables copyright infringement or intentionally removed or altered CMI, defendant did so with knowledge that its conduct will induce, enable, facilitate, or conceal infringement.
I am not aware of any case since Murphy where plaintiff has satisfied this burden at trial though I suspect we will see one soon.
In any case, the DMCA gives plaintiffs a second string to their bow. In addition to a copyright infringement claim, they may also have a claim for CMI removal or falsification for which they will be entitled to additional statutory damages. In a later post I will discuss the extent of the damages that may be awarded; but keep in mind they may be substantial.
You are welcome to share below your CMI litigation experiences under the DMCA.
For my earlier posts on Agence France v. Morel click here and here.
For another post on Murphy and its implications see Terry Hart’s fine post here.