Independent Cause of Action for Removal of Copyright Notice

Since the adoption of the Digital Millennium Copyright Act in 1998 (DMCA), district courts have struggled to apply the language of 17 U.S.C. § 1202 (statute here) creating an independent cause of action that can arise from the simple removal of a copyright notice from works published on the Internet.   The first decision of a federal appeals court may serve to clarify the manner in which the statute is to be applied.

Much attention was devoted at the time that the DMCA was enacted to provisions that made it unlawful to circumvent digital rights management technologies, encryption of movies for example, even when there is no viable claim for copyright infringement.

Digital Millennium Copyright Act

Another provision of the DMCA, however, has even broader implications.  Under 17 U.S.C. § 1202, it  is unlawful to remove “copyright management information”  (CMI) or “distribute, import for distribution or perform” works with the CMI removed “having reasonable grounds to know that it will induce, enable, facilitate or conceal and infringement of any right” under federal copyright law.

The Third Circuit Court of Appeals, the first appeals court to consider this issue, has given effect to the broad language of the statute, reversing a trial court’s grant of summary judgment in a case involving the copying and publication on the Internet of photos from which the photographer’s name had been removed.

Copyright Management Information

The case, Murphy v. Millennium Radio Group LLC, No. 10-2163 (3d Cir. June 14, 2011)(opinion here.) involved a photographer who took photographs of two disc jockeys for New Jersey Monthly magazine. Murphy’s photos, when published, had a gutter credit with his name perpendicular near the edge of the page.  One of the radio station’s employees copied the photos and posted them to the web, and fans were asked to alter them in a contest.

Murphy discovered the republication, sent a cease and desist letter, and ultimately a lawsuit followed for copyright infringement, defamation (the DJs apparently were not kind on receiving the cease and desist notice) and violation of the DMCA for removing the gutter credit.

Defendants moved to dismiss, arguing that the statute did not apply unless the removal of the CMI was part of an “automated copyright protection or management system.”  In other words, defendants claim, it had to be automatic and managed by a computer.  The court, however, rejected this argument, applying the plain language of the statute despite.

The DMCA provides in relevant part:

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 [17 U.S.C. § 1203], having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title. 17 U.S.C. § 1202

Plaintiffs may recover a statutory damages award of $2,500 to $25,000 for each violation, as well as attorneys fees and injunctive relief under 17 U.S.C. § 1703.

Some courts had struggled with a potential ambiguity between the language of the statute and legislative history that seemed to indicate that the statute was enacted with only technological removal of CMI as its purpose.  The Third Circuit panel, however, found that the language of the statute was clear, and in the absence of ambiguity it was obligated to impose the liability provided by its express terms.

The court’s reading of the statute opens a broad range of liability and could implicate such issues as fair use.  Removal of copyright information is common in any excerpt and one need only look at YouTube to see the extent of the violations.  In addition, the including of language “including in digital format” indicates that the statute might apply to digital and non-digital works.

To learn more about copyright protection and management contact one of our experts here.