Court Split Widens over Whether DMCA Rules against Removal of Copyright1

Court Split Widens over Whether DMCA Rules against Removal of Copyright

Among the anti-circumvention rules in the Digital Millennium Copyright Act (DMCA) are prohibitions against the removal or alteration of “copyright management information.” (17 USC §1202). While the popular understanding of the DMCA is that its provisions are specifically targeted to digital media, the definition of “copyright management information” appears very broad and includes:

• The title and other information identifying a work, including the information set forth in a notice of copyright.
• The name(s) and other identifying information of the author, owner and/or performer of the work.
• Terms and conditions for use of the work, and
• Identifying numbers or symbols referring to such information or links to such information.

At face value, nothing about these definitions appears to limit “copyright management information” to digital or other electronic information. However, the earliest District Court cases decided that Congress had intended to limit this provision to “automated copyright management systems functioning within a computer network environment.” IQ Group, Ltd. v. Wiesner Publishing, LLC, 409 F.Supp.2d 587, 596 (D. New Jersey 2006); Textile Secrets International, Inc. v. Ya-Ya Brand Inc., 524 F.Supp.2d 1184 (C.D. Cal. 2007). Among technological measures that these decisions indicated would qualify under this standard were electronic envelopes and digital watermarks. This interpretation was followed, without significant comment, in another recent Southern District of New York decision. See Silver v. Lavandeira, Southern District of New York, 08 Civ. 6522 (JSR) (January 7, 2009 Magistrate’s Report and Recommendation).

That early trend is meeting some resistance. In March 2007, a court in the Western District of Pennsylvania held that Section 1202(c) defines “copyright management information” broadly to include “any” of the information set forth in its defined categories, whether digital or not. McClatchey v. Associated Press, 2007 WL 776103 (W.D. Pa. 2007). This meant that cropping the title, author’s name and copyright notice on printouts of photographs could violate this provision of the DMCA. In February 2009, directly rejecting the IQ Group and Textile Secrets rulings, a court in the Southern District of New York stated that the phrase “the technological measures of automated systems” is not found in the statute. As such, it found that the statute could cover manual removal of copyright information. See Associated Press v. All Headline News Corp., Southern District of New York, 08 Civ. 323 (PKC) (February 17, 2009 Memorandum and Order).

It is too early to tell how this split will be resolved. If the broader view of the statute is accepted, it could substantially change the requirements even for fair use of copyrighted information. Under the statute removal or alteration of copyright information is prohibited “without the authority of the copyright owner or law” — without exception. Section 1202(b).