Attorney Steve® Copyright Basics – Violation of Copyright Management Information (CMI) – DMCA 17 U.S.C. 1202(b)1-3.
So what happens when someone strips the copyright symbol off your copyrighted photos, or tries to delete metadata? In this blog, a Section 1202 DMCA copyright infringement claim was brought by a photographer against CoreLogic alleging a violation of the law. Let's take a look at the facts.
In this case CoreLogic runs a real estate multiple listing service (MLS), one of those being Tempo. The Plaintiffs were aerial photographers Robert Stevens and Steven Vandel and in the trial court case, their company Affordable Aerial Photographs. Their business involves taking photos of property for real estate agents and to LICENSE (not SELL – the company retains the copyright ownership). The real estate agents then (when they get a new real estate listing) typically use one or more photos to market the property on the Defendant's MLS service. The MLS is basically software code that takes the photos, and reduces them down to thumbnails. In this process, some or all of the Metadata from the photo (information about the photo – see below) was stripped which Plaintiff took issue with and asserted a DMCA 1202(b)1-3 violation.
The Defendant claimed no intent to infringement anyone's copyright or to help induce others to infringe the photo and originally argued fair use defense. Later, the Defendant filed a motion for summary judgment and the court granted the motion dismissing the case. Basically, the court held that plaintiffs could not prove, or at least did not prove the “mental state” requirement under Section 1202.
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Section 1202 of the DMCA copyright law
Here is what 17 U.S.C. 1202 says:
17 U.S. Code § 1202 – Integrity of copyright management information (a) False Copyright Management Information.
No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement
— (1) provide copyright management information that is false,
(2) distribute or import for distribution copyright management information that is false.
(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,
(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. (c)Definition.
As used in this section, the term “copyright management information” means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work:
(1) The title and other information identifying the work, including the information set forth on a notice of copyright.
(2) The name of, and other identifying information about, the author of a work.
(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
(4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
(5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.
(6) Terms and conditions for use of the work.
(7) Identifying numbers or symbols referring to such information or links to such information.
(8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work. (
d)Law Enforcement, Intelligence, and Other Government Activities.— This section does not prohibit any lawfully authorized investigative, protective, information security, or intelligence activity of an officer, agent, or employee of the United States, a State, or a political subdivision of a State, or a person acting pursuant to a contract with the United States, a State, or a political subdivision of a State. For purposes of this subsection, the term “information security” means activities carried out in order to identify and address the vulnerabilities of a government computer, computer system, or computer network. (e) Limitations on Liability.— (1)Analog transmissions.—In the case of an analog transmission, a person who is making transmissions in its capacity as a broadcast station, or as a cable system, or someone who provides programming to such station or system, shall not be liable for a violation of subsection (b) if— (A) avoiding the activity that constitutes such violation is not technically feasible or would create an undue financial hardship on such person; and (B) such person did not intend, by engaging in such activity, to induce, enable, facilitate, or conceal infringement of a right under this title. (2) Digital transmissions.— (A) If a digital transmission standard for the placement of copyright management information for a category of works is set in a voluntary, consensus standard-setting process involving a representative cross-section of broadcast stations or cable systems and copyright owners of a category of works that are intended for public performance by such stations or systems, a person identified in paragraph (1) shall not be liable for a violation of subsection (b) with respect to the particular copyright management information addressed by such standard if— (i) the placement of such information by someone other than such person is not in accordance with such standard; and (ii) the activity that constitutes such violation is not intended to induce, enable, facilitate, or conceal infringement of a right under this title. (B) Until a digital transmission standard has been set pursuant to subparagraph (A) with respect to the placement of copyright management information for a category of works, a person identified in paragraph (1) shall not be liable for a violation of subsection (b) with respect to such copyright management information, if the activity that constitutes such violation is not intended to induce, enable, facilitate, or conceal infringement of a right under this title, and if— (i) the transmission of such information by such person would result in a perceptible visual or aural degradation of the digital signal; or (ii) the transmission of such information by such person would conflict with— (I) an applicable government regulation relating to transmission of information in a digital signal; (II) an applicable industry-wide standard relating to the transmission of information in a digital signal that was adopted by a voluntary consensus standards body prior to the effective date of this chapter; or (III) an applicable industry-wide standard relating to the transmission of information in a digital signal that was adopted in a voluntary, consensus standards-setting process open to participation by a representative cross-section of broadcast stations or cable systems and copyright owners of a category of works that are intended for public performance by such stations or systems. (3)Definitions.—As used in this subsection— (A) the term “broadcast station” has the meaning given that term in section 3 of the Communications Act of 1934 (47 U.S.C. 153); and (B) the term “cable system” has the meaning given that term in section 602 of the Communications Act of 1934 (47 U.S.C. 522).
“A claim under § 1202(b) has four elements:
(1) the existence of copyright management information on the infringed work;
(2) removal and/or alteration of that information;
(3) that the removal and/or alteration was done intentionally;
(4) that the removal was done with knowledge or reason to know that it will induce, enable, facilitate, or conceal an infringement.” Mantel v. Smash.com, Inc., No. 19-cv-6113-FPG, 2019 WL 5257571, at *2 (W.D.N.Y. Oct. 17, 2019) (citing Mango v. BuzzFeed, Inc., 356 F. Supp. 3d 368, 376-77 (S.D.N.Y. 2019)).
Some Courts - see Brown v. Stroud, 2011 U.S. District Ct. Northern District of California, may also require that the claim relates to the internet, e-commerce, or other DMCA related purposes.
Watch Attorney Steve® discuss Section 1202 Claims in this Copyright Casebrief Stevens v. CoreLogic, inc.
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What is metadata in a photo?
The case decision talked about this:
“Like most digital photographs, at least some of Stevens' and Vandel's photographs contain metadata — i.e., data about the image file itself. Metadata is not visible on the face of the image. Rather, it is either embedded in the digital file or stored outside the image file, such as in a “sidecar” file, and can be viewed using computer programs. Some metadata is generated automatically by cameras. The Exchangeable Image File Format (“EXIF”) is used by virtually all digital cameras to store information about the settings used to capture a digital image. EXIF information can include the:
- serial number of the camera taking the photograph
- the shutter speed
- the aperture settings
- light sensitivity
- the focal length of the lens
- in some cases, the location at which the photo was captured.
Essentially, EXIF metadata provides information about when the image was taken and under what technical conditions. Other metadata may be added manually, either by programming the camera or by adding information after taking the picture, using photo editing software. Such metadata is often stored in IPTC format, named for the International Press Telecommunications Council, which developed metadata standards to facilitate the exchange of news.
IPTC metadata can include, for example:
- the title of the image
- a caption or description
- information about the photographer
- copyright restrictions. I
- t may be used to check copyright information, to sort images, and to provide accurate search results in an image database or search engine.
A small number of fields such as Author/Creator, Copyright, and Caption/Description exist in both EXIF and IPTC formats.
So what's the big deal?
Copyright law restricts the removal or alteration of copyright management information (“CMI”) — information such as the title, the author, the copyright owner, the terms and conditions for use of the work, and other identifying information set forth in a copyright notice or conveyed in connection with the work. See 17 U.S.C. § 1202(b)–(c). Both EXIF and IPTC metadata can contain “copyright management information.”
This is what was at issue in this case, and the Plaintiff's contended that Defendants software stripped this information.
Whether a photographer can claim a section 1202 violation for removal of copyright management information where they cannot prove the knowing mental state of the Defendant (alleged infringer)?
No. The 9th Circuit affirmed the lower court's grant of the MSJ motion.
Here are a few snippets from the Court's decision:
- The panel held that § 1202(b) requires a showing that the defendant knew the prohibited act would “induce, enable, facilitate, or conceal” infringement. The panel concluded that the photographers did not offer evidence to satisfy this mental state requirement because they did not provide evidence from which one could infer that future infringement was likely, albeit not certain, to occur as a result of the removal or alteration of copyright management information.
- Both provisions thus require the defendant to possess the mental state of knowing, or having a reasonable basis to know, that his actions “will induce, enable, facilitate, or conceal” infringement. The Photographers have not offered any evidence to satisfy that mental state requirement.
- As we interpret Section 1202(b), this generic approach won't wash. It is a fundamental principle of statutory interpretation that we must “give effect, if possible, to every clause and word of a statute,” Montclair v. Ramsdell, 107 U.S. 147, 152 (1883), “so that no part will be inoperative or superfluous, void or insignificant,” Corley v. United States, 556 U.S. 303, 314 (2009); see also Hibbs v. Winn, 542 U.S. 88, 101 (2004); Astoria Fed. Savs. &Loan Ass'n v. Solimino, 501 U.S. 104, 112 (1991). To avoid superfluity, the mental state requirement in Section 1202(b) must have a more specific application than the universal possibility of encouraging infringement; specific allegations as to how identifiable infringements “will” be affected are necessary.
- Applying that concept here, we hold that a plaintiff bringing a Section 1202(b) claim must make an affirmative showing, such as by demonstrating a past “pattern of conduct” or “modus operandi”, that the defendant was aware of the probable future impact of its actions.
Additional Case Law
Here are a few more snippets from Brown v. Stroud, 2011 U.S. Dist. LEXIS 70126 a case from the Northern District Court in California.
The Digital Millenium Copyright Act provides protection for a person's knowing and intentional misuse of copyright management information to induce, enable, facilitate, or conceal infringement. The term "copyright management information" means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, the title and other information identifying the work, including the information set forth on a notice of copyright, and the name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.....In order to state a claim for a violation of of17 U.S.C. 1202, a plaintiff must allege facts showing that the alleged falsification or removal of copyright management information has some relation to the Internet, electronic commerce, or the purposes for which the Digital Millenium Copyright Act was enacted.
The Court begins, as it must, with the text of the statute. The DMCA provides protection for a person's knowing and intentional misuse of CMI to induce, enable, facilitate, or conceal infringement. The term CMI means "any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, ..
(1) [t]he title and other information identifying the work, including the information set forth on a notice of copyright, ... [and] (3) [t]he name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
Recently, the Third Circuit rejected the I.Q. Group court's interpretation of Section 1202 and the term CMI. Murphy v. Millenium Radio Group, LLC, 650 F.3d 295, 2011 U.S. App. LEXIS 11984, 2011 WL 2315128 (3rd Cir. June 14, 2011). The Murphy court held that "a cause of action under § 1202 of the DMCA potentially lies whenever the types of information listed in § 1202(c)(1)-(8) and 'conveyed in connection with copies ... of a work ... including in digital form' is falsified or removed, regardless of the form in which that information is conveyed." In that case, the plaintiff owned the copyright to a photograph of two radio personalities, which was published in a magazine with a "gutter credit" identifying the plaintiff as the author of the photograph. An employee of the radio station scanned the photograph and posted it on two websites, without the gutter credit.
A growing number of district courts have concluded that CMI should be construed more broadly. See Agence France Press v. Morel, 769 F. Supp. 2d 295, 2011 (S.D.N.Y. Jan. 14, 2011) ("Morel"); Faulkner Press, L.L.C. v. Class Notes, L.L.C., 756 F. Supp. 2d 1352, 1359 (N.D. Fla. 2010) (plain language did not limit the definition of CMI to "notices that are placed on works through technological processes," but finding no violation of DMCA); Cable v. Agence France Presse, 728 F. Supp. 2d 977, 980-81 (N.D. Ill. 2010); Interplan Architect, Inc. v. C.L. Thomas, Inc., 2009 U.S. Dist. LEXIS 126705, 2009 WL 6443117, at *3-5 (S.D. Tex. Nov. 13, 2009); Fox v. Hildebrand, (C.D. Cal. July 1, 2009) (declining to look to legislative history where "[t]he plain language of the DMCA provision at issue is not limited to copyright notices that are digitally placed on a work") Link to the text of the note; Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454, 461-62 (S.D.N.Y. 2009) (denying a motion to dismiss and finding that there is "no textual support for limiting the DMCA's application to 'the technological processes of automated systems'").
However, the Court cannot turn a blind eye to the purposes for which the DMCA was enacted, namely "to mitigate the problems presented by copyright enforcement in the digital age." MDY Industries, 629 F.3d at 942 (citing Universal City Studios, Inc. v. Corley, 273 F.3d 429, 440 (2d Cir. 2001)); see also Textile Secrets, 524 F. Supp. 2d at 1196. In that respect, the Court does find the Textile Secrets case persuasive, in part, and concludes it would be appropriate to review the legislative history to avoid impracticable results. Id. at 1195. This Court shall not repeat the Textile Secrets court's discussion of the legislative history or the various treaties and White Papers that preceded the enactment of the DMCA. See generally id. at 1196-99.
It is clear from that discussion that Congress was concerned, in part, about copyright protection in a digital age and in an electronic marketplace. Id. at 1199. Therefore, the Court concludes that in order to state a claim for a violation of Section 1202(a) or (b), a plaintiff must allege facts showing that the alleged falsification or removal of CMI has some relation to the Internet, electronic commerce, or the purposes for which the DMCA was enacted. Cf. Textile Secrets, 524 F. Supp. 2d at 1201.
Possible Damages and Remedies for a 1201 or 1202 violation
A defendant in a copyright 1202 case can face the following damages and penalties:
(a) Civil Actions.— Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.
(b) Powers of the Court.—In an action brought under subsection (a), the court—
(1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution;
(2) at any time while an action is pending, may order the impounding, on such terms as it deems reasonable, of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation;
(3) may award damages under subsection (c);
(4) in its discretion may allow the recovery of costs by or against any party other than the United States or an officer thereof;
(5) in its discretion may award reasonable attorney's fees to the prevailing party; and
(6) may, as part of a final judgment or decree finding a violation, order the remedial modification or the destruction of any device or product involved in the violation that is in the custody or control of the violator or has been impounded under paragraph (2).
(c) Award of Damages.— (1)In general.—Except as otherwise provided in this title, a person committing a violation of section 1201 or 1202 is liable for either—
(A) the actual damages and any additional profits of the violator, as provided in paragraph (2),
(B) statutory damages, as provided in paragraph
(2) Actual damages.— The court shall award to the complaining party the actual damages suffered by the party as a result of the violation, and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages, if the complaining party elects such damages at any time before final judgment is entered.
(3) Statutory damages.
(A) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.
(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.
(4) Repeated violations.— In any case in which the injured party sustains the burden of proving, and the court finds, that a person has violated section 1201 or 1202 within 3 years after a final judgment was entered against the person for another such violation, the court may increase the award of damages up to triple the amount that would otherwise be awarded, as the court considers just.
(5) Innocent violations.— (A)In general.— The court in its discretion may reduce or remit the total award of damages in any case in which the violator sustains the burden of proving, and the court finds, that the violator was not aware and had no reason to believe that its acts constituted a violation. (B) Nonprofit library, archives, educational institutions, or public broadcasting entities.—
(i) Definition.— In this subparagraph, the term “public broadcasting entity” has the meaning given such term under section 118(f). (
ii) In general.— In the case of a nonprofit library, archives, educational institution, or public broadcasting entity, the court shall remit damages in any case in which the library, archives, educational institution, or public broadcasting entity sustains the burden of proving, and the court finds, that the library, archives, educational institution, or public broadcasting entity was not aware and had no reason to believe that its acts constituted a violation.
Contact us for a free analysis of your case. We can help with infringing photos, videos, jewelry, comics, posters, books, music, poetry, jingles, software, mobile applications, images, illustrations, vectors, art, paintings and other copyrighted content.
Examples of 1202 claims that worked!
- Murphy v. Millennium Radio Group LLC, 650 F. 32 295, held that 17 U.S.C. Section 1202's prohibition against tampering with or falsifying “copyright management information” (“CMI”) is broad enough to encompass removing a photographer's name from a magazine page before digitizing an image. Defendant dropped a photographer's name from the copyright credit before posting the photo online.
What is a DMCA 17 U.S.C. 512(f) knowing misrepresentation claim?
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