[A2k] Reed Smith: "Copyright: Some Very Recent Cases You Should Know About

Manon Ress manon.ress at keionline.org
Mon Aug 8 10:06:56 PDT 2011

Copyright: Some Very Recent Cases You Should Know About

By Reed Smith

Unless they were decided by the Supreme Court, contained major
players, or were widely anticipated to begin with, most copyright
cases do not get a lot of press. Here are six somewhat below-the-radar
decisions from the past two months that will be of real consequence in
the copyright world.

Murphy v. Millennium Radio Group, 2011 WL 2315128 (3d Cir. June 14,
2011): Copyright Management Information Includes Simple Non-Digital
Copyright Credits

While the bundle of rights offered by copyright law includes a lot of
things, it does not include the right to "credit." However, in Murphy,
the Third Circuit found that the removal of a credit, digital or not,
from any copyrighted work may be a violation of the Digital Millennium
Copyright Act's ("DMCA") prohibition on tampering with "Copyright
Management Information" ("CMI").

Here, plaintiff took a photo of two shock-jocks for a local magazine's
"Best of" edition. The humorous photograph portrayed the two DJs,
naked, with their private areas covered only by a sign proclaiming the
name of their radio station-making this perhaps the one case where CMI
could be confused with "TMI" (insert your own joke here). The radio
station then used the photograph in a contest where its listeners
altered the photo in other amusing ways. In administering the contest,
the station also removed the photographer's name from the bottom of
the photo.

The district court dismissed a copyright infringement claim based on
fair-use grounds, and also dismissed the plaintiff's CMI claim. The
Third Circuit reversed. While the fair-use reversal was interesting,
it did not create new law. But, there have been few cases even
mentioning CMI, and just about all of those at the district court
level. Those courts that found no CMI violation reasoned that: (a) the
removal of mere credits, especially non-digital credits, cannot be a
violation of the DMCA because the DMCA was intended to safeguard
technological measures used to protect copyrighted works; and, (b)
finding a CMI violation for simple credit removal would go against the
bar on copyright credit claims and potentially blur the lines of
copyright and trademark.

The Third Circuit, however, held that the clear language of the DMCA
(17 U.S.C. § 1202) had no such limitations in the actual definition of
CMI, and so it could include any form of credit. Like MDY Indus., LLC
v. Blizzard Entertainment, Inc., 2010 WL 5141269 (9th Cir. Dec. 14,
2010), in the Ninth Circuit, which interpreted the DMCA's "access"
right, this may be a case where the court correctly read the literal
interpretation of the DMCA, even if that interpretation might contrast
with the original intent of the law. Such a finding may cast a wide
net for potential DMCA violations, so look for a substantial rise in
"removal of credit" claims going forward. However, note that a CMI
violation is an additional claim, not a substitute for a copyright
claim, since it still has to "induce, enable, facilitate, or conceal"
an infringement.

end of quote

Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
manon.ress at keionline.org

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