Meeting of the Minds—Shock and Aww: Social Media and § 1202 of the DMCA

Vol. 6 No. 2

By

Alyssa Reiner is an attorney advisor with the Smithsonian Institution’s Office of Contracting. She specializes in copyright law, with an emphasis on music, visual arts, and new media transactions. She can be reached at reinera@si.edu. Noah Priluck is an associate at McGrath North Mullin & Kratz, PC LLO in Omaha, Nebraska. He specializes in intellectual property matters and complex and commercial litigation. He can be reached at npriluck@mcgrathnorth.com.

As the Internet continues to play an ever increasing role in our work and personal lives (fulfilling the apparently universal need for pictures of cuddly baby animals, among other things) and technology like smartphones and tablets add additional avenues for us to get online, the use of social media has soared. From 2011 to 2012 alone, social media use increased by 21 percent, with sites like Facebook and Twitter showing 61 percent and 48 percent year-over-year increases respectively.1 The loose thread that connects social media in all of its permutations is online content sharing. Therefore it’s easy to anticipate that with the increase in use of social media, there will be a concomitant increase in volume of creative content, which is often protected or protectable under copyright law, uploaded and shared by consumers of social media services.2

In instances of alleged infringement of copyright arising from these activities, copyright holders can look to the Digital Millennium Copyright Act (DMCA)3 for protections beyond those afforded by the Copyright Act. The DMCA, established primarily to address copyright in the digital age,4 safeguards technological measures implemented to prevent unauthorized copying of copyrighted work. Among the DMCA’s protections is that afforded under § 1202 to “copyright management information,” or “CMI.” CMI is defined to include, among other things, “the name of, and other identifying information about, the author of a work.”5 In Murphy v. Millennium Radio Group LLC, the U.S. Court of Appeals for the Third Circuit became the first federal appellate court to substantively and explicitly address the scope of CMI.

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