A recent development in Jacobsen v. Katzer has given slightly more guidance on a rarely invoked section of the DMCA, 17 U.S.C. § 1202(b). The case involves defendant Katzer’s use of the Java Model Railroad Interface (JMRI) software, which plaintiff Jacobsen is a leading contributor to, without adhering to the terms of its license. The Federal Circuit’s August 2008 decision in Katzer was a landmark case for the open source licensing community because of its holding that violations of an open source license could be considered copyright infringement, rather than merely breach of contract. The case also provided important language about the validity and enforceability of such licenses.
On remand for the copyright infringement and other claims this past December, the Northern District of California ruled on cross-motions for summary judgment. The court granted summary judgment in favor Jacobsen on his copyright infringement claim as to liability, but not damages. The court also granted plaintiff’s motion for summary judgment on his cybersquatting claiming under the ACPA. What I find notable about the decision is its exposition of 17 U.S.C. § 1202(b):
"(b) Removal or Alteration of Copyright Management Information.—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, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title."
§1202(c) broadly defines “copyright management information” (“CMI”) to include information commonly thought of as meta-data, including the name of the author or other identifying information about the work, “[t]erms and conditions for use of the work[,]" and “[i]dentifying numbers or symbols referring to such information or links to such information.” §1202 is an implementation of the 1996 WIPO Copyright Treaty, Article 12, which requires parties to provide for remedies if persons are found “to remove or alter any electronic rights management information without authority.”
A few cases have explored the contours of §1202(b). In Textile Secrets v. Ya-Ya, the court held §1202(b) inapplicable to a copyrighted fabric design. 524 F.Supp. 2d 1184 (C.D. Cal. 2007). The design had a copyright notice on the fabric’s “selvage,” the edge of the fabric that is meant to be cut away and discarded, and a tag on the fabric also stated it is a registered work of the plaintiff. The tag could be physically removed. After a thorough discussion of the legislative history and purposes of the DMCA, the court refused to “find that the provision [§1202] was intended to apply to 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.”In IQ Group, Ltd. v. Wiesner Pub., the court relied completely on secondary sources, since there weren’t yet any reported cases, and denied CMI protection to removal of an advertiser’s logo and hyperlink to copyright information contained in an email, holding that the CMI protected by the DMCA is limited to components of technological measures used to protect copyrights in automated systems. 409 F.Supp.2d 587 (D.N.J.2006). In a different case, the Southern District of New York, deciding on Rule 12 motions, rejected this "automated systems" interpretation as having no basis in the text of the statute and no other support. Associated Press v. All Headline News Corp., 608 F.Supp.2d 454 (S.D.N.Y. 2009).
In another case, the Southern District of Florida found §1202 liability based on the defendant’s intentional removal from a multimedia presentation without permission the copyright notice, title of the work, information identifying the copyright holder company and its President who was credited in the work. Stockwire Research Group, Inc. v. Lebed, 577 F.Supp.2d 1262, 1265 (S.D.Fla. 2008). Agreeing with McClatchey, discussed below, the court held that the available statutory damages for “each violation” of §1202 applied to the number of times the defendants posted the unauthorized work online for distribution, rather than the number of unlawful end-recipients of the unauthorized work. Stockwire at 1266, citing §1202(c)(3)(B). Contrast this with the measure of statutory damages for copyright infringement, which is calculated per work infringed regardless of the number of copies made or distributed. See, e.g. Mason v. Montgomery Data, 967 F.2d 135, 143,144 (5th Cir. 1992).
Regarding CMI and photographs, the Associated Press is familiar with arguments for and against application of §1202(b). Victoria McClatchey sued the AP for photographing one of her photographs, cropping the new image to eliminate her notice of copyright, and distributing the photo without her permission. The court rejected the AP’s motion for summary judgment that §1202 did not apply, finding that the “technological process” of using a computer to add the copyright notice to her photograph fell within §1202(c), and thus §1202(b) applied. McClatchey v. The Associated Press, 2007 WL 776103 (W.D.Pa. 2007). The AP invoked the section against Shepard Fairey in their dispute over the Obama “Hope” poster. A discussion of §1202’s application in that case is available from the EFF.
In Katzer, the Northern District of California's December 2009 decision found “that there has been some technological process employed to protect the author’s name, a title, a reference to the license and where to find the license, a copyright notice, and the copyright owner of Plaintiff’s work. Further, there is no dispute that Defendants employed a tool to translate the JMRI files to a format for their own use without copying this attribution information.” However, the court only granted partial summary judgment to the Plaintiff on the DMCA claim because “as Plaintiff concede[d], there remain disputed and therefore triable issues of fact regarding Defendants’ knowledge and intent.” Contrast this with a claim for copyright infringement, which does not necessarily require proof of defendant's intent (considerations of willful infringement aside).
With the increasing ubiquity of works under copyleft or open source licenses that often include and/or require preservation of either a link to their license, a copy of the license itself, or a “machine-readable” version of the license, §1202 can serve as an additional tool to ensure enforceability of license terms. In the context of free and open source software, a definitive holding on the contours of §1202 could help practitioners advising clients on compliance with open source and copyleft licenses. If the parties don’t settle, a later ruling could play a role in future filesharing and user-generated content cases as well.
-Joseph Merante
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