Mcle Self-study Article

• Citation: Vol. 40 No. 2
• Publication year: 2015
• Author: AUSTIN RAY PHILLIPS LeClairRyan LLP

MCLE Self-Study Article

AUSTIN RAY PHILLIPS LeClairRyan LLP

A CLOSER LOOK AT § 1202 LITIGATION AND THE DEVELOPING JURISPRUDENCE OF COPYRIGHT MANAGEMENT INFORMATION ("CMI")

(See end Of this article for infosmation on receiving 1.0 hour MCLE self-study.)

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Introduction

This article examines litigation implicating § 1202 of the Digital Millennium Copyright Act ("DMCA"). In particular, it examines how the courts have dealt with claims of compromising the integrity of the "copyright management information" ("CMI") of a given creative work from the time the DMCA was enacted until the Third Circuit was the first appellate court to review the issue in 2011, and reviews the focus of § 1202 litigation since that decision.

The DMCA and § 1202

The DMCA¹ was passed in 1998 to address the perceived need of copyright owners for "legal sanctions" to enforce various technological measures they had adopted to prevent the unauthorized reproduction of their works.² It also served "to conform United States copyright law to its obligations under two World Intellectual Property Organization ("WIPO") treaties, which required contracting parties to provide effective legal remedies against the circumvention of protective technological measures used by copyright owners."³

The DMCA was legally necessary due to the ease with which digital works could be copied and distributed worldwide virtually instantaneously; accordingly, copyright owners were rightfully hesitant to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy.⁴ Indeed, the DMCA was designed to "facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development and education in the digital age."⁵ The most well-known provision of the DMCA, § 1201, grants a cause of action to copyright owners for the "circumvention of a technological measure that effectively controls access to a work."⁶ § 1201 has been widely litigated and, while it is still a growing area of jurisprudence, the general scope and applicability of claims that arise under this section of the DMCA are well established.

Differing from § 1201's provisions regarding the circumvention of technological protection measures protecting access to a copyrighted work, § 1202 protects the integrity of the CMI conveyed in connection with the copyrighted works. While 17 U.S.C. § 1202(c) codifies an enumerated listing of eight categories of CMI, the definition of CMI in Article 12 of the WIPO treaties was: information that identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use in the work, and any numbers or codes that represent such information.⁷

Interestingly, until late 2007, there were only two reported cases that dealt with the scope and applicability of 17 U.S.C. § 1202.⁸ These cases, IQ Group, Ltd. v. Wiesner Publishing, LLC⁹ and McClatchey v. The Associated Press,¹⁰ also represented a split of statutory construction applied by courts to discern the merit of a claim under § 1202.¹¹ The IQ Group, Ltd. court, relying on scholarly writings and legislative history of the DMCA, held that the section should be construed to protect only copyright management information performed by the technological measures of automated systems.¹² In contrast, the McClatchey court, relying primarily on the statute's plain language, observed that under § 1202(c), the term "copyright management information" was broadly defined, and therefore included protection for non-digital information as well as digital information.¹³

Murphy and § 1202

Despite the legislation enacted in 1998, it wasn't until 2011 (i.e., thirteen years later) that a federal appellate court reviewed the scope and applicability of "copyright management information" within the meaning of § 1202 of the DMCA. In Murphy v. Millennium Radio Group LLC, a case involving the removal of CMI of a photograph and

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then distribution of that photograph with falsified CMI, the Third Circuit disagreed with the lower court's holding that the wording of § 1202 limits the scope of CMI to only copyright management information that implicates automated technological systems.¹⁴ As it was the first appellate court to address the scope of CMI within the DMCA, the court noted that, read in isolation, § 1202 established an independent cause of action for the removal of CMI when it has been "conveyed in connection with copies of" the work.¹⁵

The court also addressed the intention of § 1202, and instead of engaging in lengthy review of legislative history, found that there was "no contradiction" between the plain wording of the statutory language and the goal of the legislation, which was to greatly expand the rights of copyright holders.¹⁶ Under this construction of § 1202, the Third Circuit found that the removal and altering of a photographer's CMI, found in a printed gutter credit near a non-digital image, fell within the scope and applicability of the protections prescribed for copyright owners under § 1202 and thus vastly broadened the base of claims that may arise in future litigations.¹⁷

In the Murphy v. Millennium Radio Group LLC case, a photographer ("Murphy") was hired by a magazine to photograph well-known hosts of a show on a New Jersey radio station.¹⁸ Murphy retained the copyright to the image.¹⁹ The version of the photograph that ended up on the magazine's website, as well as other websites, was a version of the photograph that had Murphy's "gutter credit" (that is, credit placed in the inner margin, or "gutter," of a magazine page) removed, which had identified Murphy as the author of the image.²⁰ Furthermore, the magazine had invited website visitors to alter the image and submit resulting images, posting these submissions on their website, all without Murphy's permission.²¹

Murphy essentially argued that the defendants' reproduction of his image on websites without his CMI identifying him as the author of the image constituted a violation of § 1202 of the DMCA because, by publishing the version of the image without Murphy's credit, the defendants "removed or altered" CMI and "distributed" a work knowing the CMI has been removed or altered in violation of § 1202.²² The defendants argued that a printed credit from a magazine photograph that was then posted to a website was not a violation of § 1202 because the credit was not part of an "automated copyright protection or management system," despite the fact that that particular language is nowhere in § 1202.²³

The persuasive weight of "automated copyright protection or management system" in terms of the applicability...