• U.S. Court of Appeals for the Third Circuit: Removing "Copyright Management Information" from Analog Copies of Works Is Prohibited by 17 USC § 1202
  • July 21, 2011 | Author: Matthew Williams
  • Law Firm: Mitchell Silberberg & Knupp LLP - Washington Office
  • Section 1202 of the Digital Millennium Copyright Act ("DMCA") prohibits, among other things, the falsification or removal of "copyright management information" ("CMI"). Sections 1202(c)(1)-(8) list various types of information that qualify as CMI, such as: the title of the work; its author; its copyright owner; and license terms and conditions. Early district court cases confronted with interpreting the meaning of CMI adopted a narrow approach, finding that information was not CMI unless it also functioned as part of an "automated copyright protection or management system." However, the Third Circuit's recent decision in Murphy v. Millennium Radio Group LLC, No. 10-2163, 2011 WL 2315128 (3d Cir. June 14, 2011) (Fuentes, J.), which is the first federal appellate court decision interpreting section 1202, marks the culmination of a recent trend (e.g., Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454 (S.D.N.Y. 2009); Fox v. Hildebrand, No. CV 09-2085 DSF (VBKx), 2009 WL 1977996 (C.D. Cal. July 1, 2009)) toward a broader reading of the statute. This broader approach, of course, favors plaintiffs and may result in more litigation related to removal of CMI.

    In Murphy, a photographer filed an action against the owner of a radio station and two prominent "shock jocks" alleging, among other things, a violation of section 1202. An unknown employee of the radio station scanned a magazine photograph that the plaintiff took of the disc jockeys and posted the digital image on two websites without displaying the photographer's "gutter credit" (i.e., the attribution information provided on the inner margin of the magazine page). The district court granted the defendants' motion for summary judgment, holding that the gutter credit did not qualify as CMI because it did not function as a component of an automated copyright protection or management system (i.e., a technology used to protect digital copies of works).

    The Third Circuit reversed and held that CMI is not so strictly defined. Instead, a cause of action under section 1202 may arise "whenever the types of information listed in ยง1202(c)(1)-(8) ... [are] falsified or removed, regardless of the form in which that information is conveyed." The court relied on the statute's plain language and rejected attempts by lower courts (e.g., IQ Group v. Wiesner Pub., LLC, 409 F. Supp. 2d 587 (D.N.J. 2006); Textile Secrets Int'l, Inc. v. Ya-Ya Brand, Inc., 524 F. Supp. 2d. 1184 (C.D. Cal. 2007)) to "rewrite" the statute based on ambiguous language from the legislative history of the DMCA. The court concluded that section 1202, as written, "appears to be extremely broad." The court also stated that "it is undisputed that the DMCA was intended to expand ... significantly [] the rights of copyright owners."

    Murphy, as the first -- and currently the only -- appellate decision directly concerning how section 1202 should be interpreted, establishes a rule that should allow for frequent application of the statute's prohibitions. Many unauthorized uses of copyrighted material involve removal or falsification of information concerning authorship, ownership, or license restrictions. Thus, companies and individuals considering copyright causes of action would be remiss not to consider asserting claims under section 1202.

    It is important to note, however, that proving that CMI was removed or falsified is only the first step in a successful claim. Section 1202(b) requires a plaintiff to also establish that the defendant knew, or had reasonable grounds to know, that the removal of CMI would "induce, enable, facilitate, or conceal" copyright infringement. This separate element may become the focus of cases involving section 1202 claims going forward.