When the Digital Millennial Copyright Act — try saying that five times fast! — hit the books back in the waning days of the 1990s, it included a provision that sought to protect authors of copyrighted works against being disassociated from their work. Section 1202 of the DMCA makes it a violation to either remove an artist’s copyright management information from her work or distribute an artist’s work with false copyright management information. For example, if you copy my painting and crop out my signature from the lower right corner when doing so, you have committed direct copyright infringement while also violating the DMCA. And if you then sell that painting with your name added to the lower right corner, you have again violated the DMCA.
The issue that has plagued the courts since the DMCA’s inception is delineating the contours of what qualifies as copyright management information (CMI).
By statutory definition, such information includes “[t]he title and other information identifying the work, the name of, and other identifying information about, the author, copyright owner, or performer, or such other information as the Register of Copyrights may prescribe by regulation.” And, as we know from emerging case law, most recently the Fifth Circuit’s decision in Energy Intelligence Grp., Inc. v. Kayne Anderson Capital Advisors, L.P., 2020 WL 219008 (5th Cir. Jan. 15, 2020), the definition of CMI is to be construed “broadly”
It took the courts a minute, or more specifically, 12 years, to get to this construction. Back in 2007, two courts — one in New Jersey and one in California — examined what constituted CMI and narrowly construed the term to exclude anything outside of the technological realm.
The California case, venued in the Central District and styled Textile Secrets Int’l, Inc. v. Ya-Ya Brand Inc., 524 F. Supp. 2d 1184, (C.D. Cal. 2007), addressed the plaintiff’s inclusion of a design title to the edge of physical fabric bearing a copyrighted design. The court interpreted CMI to exclude any “circumstances that have no relation to the Internet, electronic commerce, automated copyright protections or management systems, public registers, or other technological measures or processes as contemplated in the DMCA as a whole.”
Because the plaintiff in Ya-Ya was unable to establish “facts showing that any technological process as contemplated in the DMCA was utilized by plaintiff in placing the copyright information onto the [copyrighted design], or that defendants employed any technological process in either their removal of the copyright information from the design or in their alleged distribution of the design,” the Section 1202 claim was rejected.
The Ya-Ya decision has aged like a soggy haddock fillet, with subsequent courts roundly rejecting its analysis. Soon after the decision issued, the Central District decided Fox v. Hildebrand, 2009 WL 1977996 (C.D.Cal.2009), holding that a handwritten (i.e., physical) copyright notice on architectural renderings constituted CMI even though it was not in digital form.
Just about every court deciding the issue after the Ya-Ya court also sneered at the proposition that CMI’s purview reached only material created and removed via technological processes. Mindful of the Supreme Court directive in Ratzlaf v. U.S., 510 U.S. 135 (1994) that when “a statutory text is clear, a court should not resort to legislative history[,]” these courts simply read and applied Section 1202, which does not distinguish between physical and digital CMI.
In Williams v. Cavalli, 2015 WL 1247065, (C.D. Cal. Feb. 12, 2015), for example, the court held that the physical signatures (or “tags”) of two street artists who created murals under the names of “Revok” and “Steel,” constituted CMI, because the tags identified Revok and Steel as the authors of the mural at issue. The fact that the tags were applied and removed physically and not digitally was of no moment. This is because, at the end of the day, as the court in Pers. Keepsakes, Inc. v. Personalizationmall.com, 2012 WL 414803, (N.D. Ill. Feb. 8, 2012), remarked “the point of CMI is to inform the public that something is copyrighted and to prevent infringement” and that information can take any form.
Which brings us back to Kayne Anderson, the recent Fifth Circuit case. There, the court acknowledged the broad-construction directive and concluded that CMI could be found in the form of a title of a .PDF file. The judges point out that “[n]othing in § 1202 indicates that a digital file name cannot be CMI.” And, citing 17 U.S.C. § 1202(c)(1), they held that “a PDF’s file name may be CMI if it is “conveyed in connection with copies” of the underlying work and contains a “title and other information identifying the work.” Thus, because the plaintiff had introduced evidence that it named its .PDFs to identify the works comprising the .PDFs (Oil Daily newsletters, in this case), its Section 1202 claim was a winner. Expect this more broad construction to become the norm in CMI cases.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.
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