Copyright management information is not a particularly sexy topic, but that all changed thanks to the help of a couple of nude DJs.

On June 14, the Third Circuit released its opinion in Murphy v. Millennium Radio Group. The underlying dispute is fairly straight-forward. A photographer was hired by a magazine to shoot a photo of two radio show hosts (the photo made it look like the two DJs were naked). Later, someone at the radio station where the two worked uploaded the photo to the station’s website and used it as part of a contest, all without Murphy’s permission.

What’s interesting, though, is that Murphy also brought a claim for removal of “copyright management information” (CMI) under 17 USC § 1202, alleging that the radio station had removed a “gutter credit” that identified him as the author from the photo before uploading it.

The District Court had dismissed Murphy’s CMI claim, holding that copyright management information is technological information used in automated copyright management processes, not garden-variety identification like the “gutter credit” that was removed. 1Murphy v. Millennium Radio Group, No. 08-1743 (D. NJ, March 31, 2010).

On appeal, the First Circuit reversed, stating that “the mere fact that Murphy’s name appeared in a printed gutter credit near the Image rather than as data in an ‘automated copyright protection or management system’ does not prevent it from qualifying as CMI or remove it from the protection of § 1202.”

While the question about what types of information are covered by the definition of CMI has come up at the district court level, this is (to the best of my knowledge) the first time a Circuit Court has addressed the issue. 2In 2003, the Sixth Circuit dealt with a CMI claim that apparently also involved the removal of text indicating author information on a non-digital work, but the question of whether this qualified as CMI wasn’t in front of the court and the claim was resolved on other grounds; Gordon v. Nextel Communications, 345 F.3d 922.

This broad reading of the statute has raised questions. Tom Casagrande of the Likely to Be Confused blog notes the irony that removal of non-digital author information violates the Digital Millennium Copyright Act under this holding. Hollywood Reporter Eriq Gardner says the decision will impact copyright law in the digital age.

I think this interpretation of the statute is broader than what Congress intended, though it is wholly supported by the statutory text. It raises some questions about the role of copyright management information going forward, though I think the impact this decision will have is blunted by the other elements required for a CMI claim. Today I want to look at content management information in some more detail, the First Circuit’s decision and some of the questions it raises, and why this decision might not make much of a difference.

Integrity of Copyright Management Information

Section 1202 became law in 1998 as part of the Digital Millennium Copyright Act (DMCA). It, along with the better known anti-circumvention provisions of § 1201, was designed to implement requirements of two WIPO treaties produced the year before. Both provisions were considered “technological adjuncts” to copyright law, “intended to ensure a thriving electronic marketplace for copyrighted works on the Internet.” 3The Home Recording Rights Coalition has an excellent collection of the legislative history of the DMCA.

The Senate Judiciary Committee noted when reporting on the bill to add CMI provisions into law, “Copyright Management Information (CMI) is an important element in establishing an efficient Internet marketplace in copyrighted works free from governmental regulation. Such information will assist in tracking and monitoring uses of copyrighted works, as well as licensing of rights and indicating attribution, creation and ownership.” 4Text of S. 2037, Digital Millennium Copyright Act, as reported by the Senate Judiciary Committee (May 6, 1998). According to the House Judiciary Committee’s report, “This section will operate to protect consumers from misinformation as well as authors and copyright owners from interference with the private licensing process.” 5H. Rept. 105-551 (Part I), Report of the House Judiciary Committee on H.R. 2281, WIPO Copyright Treaty Implementation Act (May 22, 1998).

Below is excerpts from the text of the statute, including what is prohibited, the definition of CMI, and the remedies available to those bringing a claim under § 1202.

§ 1202. Integrity of copyright management information

(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,

(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, 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, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

(c) Definition.— As used in this section, the term “copyright management information” means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work:

(1) The title and other information identifying the work, including the information set forth on a notice of copyright.

(2) The name of, and other identifying information about, the author of a work.

(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.

(4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work

(5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.

(6) Terms and conditions for use of the work.

(7) Identifying numbers or symbols referring to such information or links to such information.

(8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.

§ 1203. Civil remedies

(b) Powers of the Court.— In an action brought under subsection (a), the court—

(1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution;

(2) at any time while an action is pending, may order the impounding, on such terms as it deems reasonable, of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation;

(3) may award damages under subsection (c);

(4) in its discretion may allow the recovery of costs by or against any party other than the United States or an officer thereof;

(5) in its discretion may award reasonable attorney’s fees to the prevailing party; and

(6) may, as part of a final judgment or decree finding a violation, order the remedial modification or the destruction of any device or product involved in the violation that is in the custody or control of the violator or has been impounded under paragraph (2).

(3) Statutory damages.—

(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.

What Types of Information are Covered by § 1202?

One of the earliest interpretations of CMI came in IQ Group v. Wiesner Pub. 6409 F.Supp.2d 587 (D. NJ 2006). There, the defendant was alleged to have distributed ads created by plaintiff via email after removing the plaintiff’s logo and hyperlink from the ads. The court held that these didn’t constitute CMI under the statute based on its interpretation of the statute and the legislative history and the fact that a broader interpretation would impermissibly blur the lines between trademark and copyright. On the latter point, it pointed to the Supreme Court’s decision in Dastar Corp v. Twentieth Century Fox Film, which warned against “disregarding the trademark/copyright distinction.”

The Central District of California adopted the same position as IQ Group when it held that the removal of an author’s name and copyright notice on a fabric sample didn’t give rise to a claim under § 1202. 7Textile Secrets v. Ya-Ya Brand, 524 F.Supp.2d 1184 (2007). In rejecting a broad interpretation, it said “considering § 1202’s placement in the structure of the DMCA — a statutory scheme which, along with protecting the integrity of copyright management information, also prohibits the circumvention of technological measures that protect copyrighted works — the Court finds that such a wide-reaching interpretation would not be proper.”

But other decisions have adopted the same broad interpretation as the First Circuit: Cable v. Agence France Presse, 728 F.Supp.2d 977 (ND Illi 2010); Associated Press v. All Headline News, 608 F.Supp.2d 454 (SDNY 2009); and McClatchey v. Associated Press, 2007 WL 776103 (WD PA 2007). In all these cases, the courts relied on the plain language of the statute.

The First Circuit took the second approach in Murphy. Said the court:

There is nothing particularly difficult about the text of § 1202. Even the Station Defendants, and the courts whose decisions they cite, do not contend that § 1202 is, in itself, ambiguous or unclear. Read in isolation, § 1202 simply establishes a cause of action for the removal of (among other things) the name of the author of a work when it has been “conveyed in connection with copies of” the work. The statute imposes no explicit requirement that such information be part of an “automated copyright protection or management system,” as the Station Defendants claim. In fact, it appears to be extremely broad, with no restrictions on the context in which such information must be used in order to qualify as CMI. If there is a difficulty here, it is a problem of policy, not of logic. Such an interpretation might well provide an additional cause of action under the DMCA in many circumstances in which only an action for copyright infringement could have been brought previously. Whether or not this result is desirable, it is not absurd, as might compel us to make a more restrictive reading of § 1202’s scope.

Under this definition, it would seem that any information regarding copyright ownership on any copyrighted work — digital or not — is covered by § 1202.

Jane Ginsburg previously noted that, in this manner, § 1202 looks a lot like a moral rights provision 8Have Moral Rights Come of (Digital) Age in the United States? 19 Cardozo Arts & Entertainment Law Journal 9 (2001). — and in the US, with only a few exceptions, copyright law has long been focused on protecting only economic rights. This would be a dramatic shift in US copyright doctrine, one that I’m not sure Congress actually intended.

Will Murphy “Swallow Up” the Copyright Act?

While the First Circuit’s decision may give pause, I don’t think it is wrong: its interpretation of CMI is consistent with the plain language of the statute. Even under such a broad reading of the language, I don’t think there is a danger that § 1202 will result in much change in US copyright law.

What counts as CMI under the statute, after all, is only the first step. To successfully bring a claim under § 1202, a plaintiff still has to establish that the defendant knew or had reasonable grounds to know that intentionally removing or altering CMI “will induce, enable, facilitate, or conceal an infringement.” This is a high standard: one has to prove knowledge, intent, the purpose for removing CMI, and the fact that there was an infringement.

Between this case and the other three mentioned above that reached similar conclusions, none of the plaintiffs have gotten to that point. 9McClatchey and AP v. All Headline News have apparently settled out of court; Agence France Presse and this case are still ongoing.

Law professor Greg Lastowka believes much the same; most infringement cases don’t give rise to CMI claims, and those that do face a high bar:

For instance, in a hypothetical situation where an author’s publisher wished to remove the author’s attribution without permission, the author would have no cause of action against the publisher, unless the publisher’s copying of the work would constitute infringement. In most cases it would not, because the author would have transferred copyright or licensed the publisher to reproduce the work without requiring attribution. Additionally, even where infringement could be found to exist, the burden of showing a culpable mental state on the part of the defendant is a heavy burden for any plaintiff.  Rights-owning plaintiffs in several cases have failed to prevail on their CMI claims because they lacked admissible evidence of the requisite mental state of the infringing defendant. 10Digital Attribution: Copyright and the Right to Credit, 87 Boston University Law Review 41 (2007).

The First Circuit also addressed concerns over its interpretation, especially concerns that a CMI claim could be brought even when a defendant successfully argues fair use:

The Station Defendants argue that this interpretation would cause the DMCA to “swallow up” the Copyright Act, effectively making the latter redundant. In fact, if an infringer merely copies an entire work whole—as in the example above of a pirated film on DVD—Section 1202 will probably not be implicated, as the infringer will not have removed or altered any CMI. The Station Defendants point out that most fair uses will involve the removal of CMI. However, unlike § 1201, § 1202 applies only when a defendant knows or has reasonable grounds to know that the removal will “induce, enable, facilitate, or conceal” an infringement. Thus, those intending to make fair use of a copyrighted work are unlikely to be liable under § 1202.

Content management information has received little attention since its removal became prohibited by law over a decade ago. The First Circuit’s decision in Murphy will likely shine more of a spotlight on the subject, though the impact of this decision remains to be seen.

References   [ + ]

1. Murphy v. Millennium Radio Group, No. 08-1743 (D. NJ, March 31, 2010).
2. In 2003, the Sixth Circuit dealt with a CMI claim that apparently also involved the removal of text indicating author information on a non-digital work, but the question of whether this qualified as CMI wasn’t in front of the court and the claim was resolved on other grounds; Gordon v. Nextel Communications, 345 F.3d 922.
3. The Home Recording Rights Coalition has an excellent collection of the legislative history of the DMCA.
4. Text of S. 2037, Digital Millennium Copyright Act, as reported by the Senate Judiciary Committee (May 6, 1998).
5. H. Rept. 105-551 (Part I), Report of the House Judiciary Committee on H.R. 2281, WIPO Copyright Treaty Implementation Act (May 22, 1998).
6. 409 F.Supp.2d 587 (D. NJ 2006).
7. Textile Secrets v. Ya-Ya Brand, 524 F.Supp.2d 1184 (2007).
8. Have Moral Rights Come of (Digital) Age in the United States? 19 Cardozo Arts & Entertainment Law Journal 9 (2001).
9. McClatchey and AP v. All Headline News have apparently settled out of court; Agence France Presse and this case are still ongoing.
10. Digital Attribution: Copyright and the Right to Credit, 87 Boston University Law Review 41 (2007).

1 Comment

  1. It’s an interesting problem – and one that I feel is suitable for further legislative clarification.

    The question which I don’t think has been asked during the drafting of the DMCA (but then, I don’t know anything of the legislative history, so I could be wrong) and is – sensibly – not being asked by the courts, whose role is to interpret the statute, not re-write it, is to what extent removal of copyright-holder identification creates “orphan works”.

    The reason I use quotation marks is that the works in question might very well not be orphans at all. However, it might be difficult – if not impossible – to establish who is the owner of a work, especially one posted online, if it is the publisher’s policy to remove any information identifying the author and copyright owner.

    From what I gather, this issue is currently making some waves here in the UK, whenever the question of orphan works legislation comes up. The BBC, for example – I understand – strips all identifying information from photographs it publishes on its Web properties. It is argued that this has created a large number of effective “orphan works”. I believe a similar mechanism may be at work here.

    Thus the question arises: how can the law protect works from being “orphaned” by publisher policy, especially if we want to make use of genuine orphan works easier? (Which I am willing to consider to be a desireable policy.)