Back in 1998, Congress enacted the Digital Millennium Copyright Act (“DMCA”) to significantly enhance copyright protections and to specifically combat copyright abuse on the internet. See 17 U.S.C. § 512.
One often overlooked provision in the DMCA is a prohibition on the removal or alteration of what is termed “copyright management information” or “CMI.” The DMCA provides for an award of civil damages and statutory penalties if a person or entity removes or alters CMI or if a person or entity distributes copyrighted material where the CMI has been altered or removed. CMI is defined to include information like the title identifying the copyrighted work, the name of the author, the name of the owner of the copyright, etc. This part of the DMCA is codified at 17 U.S.C. § 1202 (b) and (c).
With respect to distribution, under subsection 1202(b)(3), the DMCA prohibits distribution, importation, or public performance of works if it is known that the CMI has been removed or altered and it is known, or there are “reasonable grounds to know,” that the removal of the CMI will “induce, enable, facilitate, or conceal an infringement of any right under this title.” Note the “double scienter” requirement — knowledge that the CMI has been removed AND that distribution will induce, enable, facilitate, or conceal copyright infringement
As an example, imagine you are a freelance photographer. You take a photographic portrait of a man who is the lead figure in a discrimination lawsuit filed against the City of New York. You allow your photograph to be used by a national news outlet. Shortly thereafter, your photograph is published in print and online editions with your name attached below the photo. Now imagine that several months later, without your permission, a different media outlet downloads your photo, removes your name from the “credit line,” adds someone to the “credit line” and then uploads your photo for a different news article.
In this scenario, the other news entity has violated the DMCA. You, the photographer, are entitled to sue for damages. The person/entity downloading your photograph violated the DMCA in two ways — by removing your name, the CMI, from the original licensed photograph and altering the CMI and then by distributing the image with the altered CMI. The CMI removal/alteration was done knowingly, the distribution was done with knowledge of the fact that the CMI had been removed/altered and there was good reason to expect that copyright infringement would be induced, enabled, facilitated, or concealed.
Our example is similar to the facts of a recent case decided by the Second Circuit. See Mango v. Buzzfeed, Inc., Case No. 19-446-cv (2nd Cir. August 13, 2020). In that case, the photograph described was taken by Gregory Mango and was originally licensed to the New York Post newspaper/media outlet. Three months later, Buzzfeed downloaded Mango’s photograph, removed the CMI, gave someone else credit for the photograph on the “credit line” and used the photograph without Mango’s permission for a different news article on Buzzfeed’s website.
Mango sued for copyright infringement and for violation of the DMCA. The infringement case was settled and, eventually, Mango prevailed on the DMCA claim. Mango was awarded statutory damages.
On appeal, Buzzfeed argued that the DMCA claim should be overturned because there was no proof of Buzzfeed’s knowledge or reasonable expectation of likely future infringement by third parties. The court rejected this argument. According to the court, the DMCA’s prohibitions are not limited to either “future infringements” or infringement by “third parties.” Moreover, the statutory language speaks in terms of inducing, enabling, facilitating, or concealing infringement. The facts proven in the Mango case showed that Buzzfeed committed copyright infringement by using Mango’s photograph without his permission. For the court, removing the CMI was an effort to conceal the copyright infringement being committed by Buzzfeed. Thus, for the court, violation of the DMCA was properly based on Buzzfeed’s own infringement. There was no need to prove third-party copyright infringement or some future infringement above and beyond Buzzfeed’s own infringement. The court affirmed the DMCA verdict in favor of Mango.
The case illustrates a powerful legal tool that copyright owners can use to protect their rights under the Copyright laws.
For more information or if you have questions about protecting your copyrights and other intellectual property, contact the trusted internet lawyers at Revision Legal at 231-714-0100.