Congress adopted the Digital Millennium Copyright Act in 1998, in large part to make circumventing such digital protection measures as encryption unlawful - even when the author has no viable claim for copyright infringement. District courts have struggled to apply the language of 17 U.S.C. § 1202, which creates an independent cause of action for the removal of copyright notices for works published on the Internet. The Third Circuit Court of Appeals is the first appeals court to address this issue in a recent decision.
A reason why district courts have grappled with this section is the statute's broad 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 an infringement of any right" under federal copyright law. The broad language of this section, potentially encompassing a wide variety of situations, made some district courts uneasy in its application.
The Third Circuit, however, has given effect to this provision in Murphy v. Millennium Radio Group, LLC. Murphy is a photographer who took photographs of two DJs for New Jersey Monthly magazine. Murphy published these photos with a gutter credit with his name along the edge of the page. A radio station employee copied the photos and posted them online, asking fans to alter the photos in a contest.
Murphy filed suit for copyright infringement and violations of the DMCA in removing the gutter credit. Defendants moved to dismiss, claiming that the DMCA did not apply to this situation. They argued that the removal of the CMI must be part of an "automated copyright protection or management system" - in other words, some type of digital protection - to be actionable.
The Court rejected defendants' argument and found that the plain language of the statute allowed the claim to proceed. Although some courts struggled with an ambiguity between the language of the statute and legislative history discussing only removal of digital CMI, the Third Circuit confirmed that the statute's plain language was controlling. That plain language states that removal of any CMI is unlawful and will subject a violator to statutory damages of $2,500 to $25,000 for each violation, as well as attorney's fees and injunctive relief.
Read more here.
