©2013. Published in Landslide, Vol. 6, No. 2, November/December 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
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.
Plaintiff Peter Murphy brought suit against radio station owner Millennium Radio Group after Murphy was hired by a magazine to take a photograph of two “shock jock” radio station hosts employed by Millennium.6 Murphy owned the copyright to the photo, which was published in a print issue of New Jersey Monthly magazine.7 Following publication, a radio station employee scanned the photo, cutting off part of the magazine’s caption. The scanned image also did not include the magazine’s “gutter credit”—a credit placed in the inner margin of a magazine page, typically in a smaller type and running perpendicular to the image—that identified Murphy as the author of the photo. Station employees posted the image to the radio station’s website, and to an additional site. On the radio station’s website, visitors were invited to alter the image and submit modified versions; the station posted 26 of these modified versions online.8
Murphy eventually discovered the image, as well as the submitted, modified versions, and sued for copyright infringement and, concerning facts not mentioned above, defamation under state law. In addition, Murphy sued for violation of his right for protection of CMI under 17 U.S.C. § 1202. The district court granted summary judgment in favor of the defendants on all counts, but the Third Circuit vacated the district court’s judgment.9
Under DMCA § 1202, in conjunction with § 1203, a copyright owner may maintain a civil action against a person who, without the authority of the copyright owner or the law, intentionally removes or alters CMI, knowingly or, with respect to civil remedies under § 1203, having reasonable grounds to know that such removal or alteration will induce, enable, facilitate, or conceal copyright infringement.10 These provisions raise a number of interesting issues, including what information falls within the scope of CMI, whether a copyrighted work has to be digital to be covered by the law, and what constitutes the requisite scienter.11
The Murphy court addressed the issue of scope by adopting a relatively broad interpretation of CMI. As a result, copyright owners relying on Murphy may have a greater chance to redress misappropriation of and a lack of attribution for their works, while others, especially social media users, may face more risks when sharing copyrighted works. Specifically, the Third Circuit determined that CMI could include a photographer’s name in a gutter credit located near a copyrighted photo that was scanned into a digital format from a print magazine. Contrary to some lower court authorities, the Third Circuit declined to limit CMI to data included in an “automated copyright protection or management system.”12
In its detailed analysis, the Third Circuit discussed lower court precedent and the DMCA’s legislative history but determined § 1202 should be interpreted according to its plain language, which did not limit CMI to automated copyright protection or management systems.13 The court found 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 this case, the mere fact that Murphy’s name appeared in a printed gutter credit near the Image rather than as data in an ‘automated copyright protection or management system’ does not prevent it from qualifying as CMI or remove it from the protection of § 1202.14
Because Murphy is the first federal appellate opinion concerning the scope of CMI, more courts may follow the Third Circuit’s lead to broadly define CMI.15
As to the question of whether the DMCA applies to analog works, most authorities have found that a copyrighted work does not have to be digital to be covered by the DMCA.20 The language of § 1202 never limits CMI to digital information, and instead states that CMI merely includes information concerning works in digital form.21 Interestingly, the Murphy court did not explicitly address this issue; although the relevant photo was digitally scanned to produce the image, the court did not distinguish between the analog and digital form.22 The plain language of § 1202, without regard for other provisions of the DMCA or its legislative history, suggests liability for removal or alteration of CMI even for analog images.23
Finally, the DMCA imposes a relatively high burden on plaintiffs seeking recovery because they must prove the alleged violator’s scienter.24 While this may be true, the Murphy court did not address this issue; indeed, the issue of whether the defendants had actually removed CMI was not even at issue yet and was therefore not addressed.25
What might the future post-Murphy hold for copyright protection in the context of social media? Fundamentally, Murphy demonstrates that claims for removal or alteration of CMI, including a right to attribution, remain viable.26 The potential for such claims will only grow as Internet-based social media services continue to increase in number and expand their user bases. As a result, an author’s right to attribution as embodied in § 1202—and, beyond § 1202, a sharer’s interest in attribution for popularizing content—will likely become increasingly important, yet more difficult to protect. Owners of copyrighted content, when they post online, will be challenged to monitor, let alone prevent, the sharing and potential exploitation of their work. The repeated reposting of copyrightable content may also lead to a rise in the number of orphan works, because attribution may be lost the further the work spreads online from its original source. Ironically, the result may be that plaintiffs will face increasing difficulty in proving that an alleged infringer had intent to remove or alter CMI, let alone infringe a copyrighted work.
Social media providers themselves have a role to play in the protection and infringement of copyrighted content. Social media sites do not typically post copyright notices independent of the CMI attached to the work by the author (often in the form of “watermarks” visible as a transparent overlay on the image itself), embedded in the metadata associated with the uploading process, or in metadata created by the social media provider to contain information about the user collected during the account registration process. As a result, most CMI is subject to the data management practices of the social media provider.27 Providers, to the extent that they enable copyright infringement of one party’s content by another party, are protected under the DMCA’s so-called “safe harbor” provision, which insulates them from secondary copyright liability.28 The provisions apply as long as the sites comply with the DMCA’s notification and takedown procedures, and post policies establishing the user’s obligation not to infringe copyrights. However, as to their direct liability arising from the alteration or removal of CMI, especially for CMI contained within metadata, the application of Murphy is unclear. Sites such as Facebook that routinely delete metadata in the course of purging data associated with disabled accounts post notice of the practice in their terms and conditions. At this point, whether sites are responsible for the direct removal of CMI as established by Murphy, or the safe harbors provisions will be interpreted to protect them from liability provided they post appropriate disclaimers in their terms and conditions, remains to be seen, though there is case law suggesting such deletions are unintentional.29
In light of the opportunities and risks that social media presents, many have called for legislative action to change U.S. copyright law, while others have sought innovative—or, depending on your views, perhaps notorious—approaches.30 Some of these efforts have failed after facing active opposition by social media users and services. The PROTECT IP Act and the Stop Online Piracy Act were opposed by Google, Wikipedia, and Reddit, among others.31 Against this backdrop of legislative uncertainty, courts have continued to apply the Communications Decency Act of 1996 and the DMCA largely for the purpose of shielding Internet service providers. However, as demonstrated by Murphy, the risks to content creators, consumers, and sharers likely will persist.
1. See Nielsen, State of the Media: The Social Media Report 2012 (2012).
2. Although social media users are often thought of as individuals, large companies are also at risk. Indeed, the creators of two popular Internet memes recently alleged trademark and copyright infringement of their user-generated content by large multinational companies. See Amended Complaint, Schmidt v. Warner Bros. Entm’t, Inc., No. CV 13-02824-JFW-MRW (C.D. Cal. May 3, 2013).
3. See Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295 (3d Cir. 2011). Besides Murphy, as of late May 2013, there were only six cases handled by U.S. circuit courts of appeals citing to 17 U.S.C. § 1202, and none of these cases explicitly addressed the scope of CMI. See St. Luke’s Cataract & Laser Inst., P.A. v. Zurich Am. Ins. Co., 506 F. App’x 970 (11th Cir. 2013) (per curiam) (finding that the district court erred by holding that a plaintiff’s DMCA claim was excluded from insurance coverage); St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson, 573 F.3d 1186 (11th Cir. 2009) (affirming without substantive discussion the district court judgment regarding an award of statutory damages for DMCA claim and noting that the district court found that the plaintiff was a prevailing party on its DMCA claim for attorney’s fees purposes); Blueport Co. v. United States, 533 F.3d 1374 (Fed. Cir. 2008) (finding that the Court of Federal Claims properly dismissed a plaintiff’s DMCA claims against the U.S. government because the government did not waive sovereign immunity for DMCA claims); Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700 (9th Cir. 2004) (finding without substantive discussion of CMI that the district court did not abuse its discretion in excluding a claim for willful removal of copyright under § 1202); Bonneville Int’l Corp. v. Peters, 347 F.3d 485 (3d Cir. 2003) (mentioning § 1202 in passing without substantive discussion of CMI); Gordon v. Nextel Commc’ns & Mullen Adver., Inc., 345 F.3d 922 (6th Cir. 2003) (affirming grant of summary judgment dismissing § 1202 claims without discussing the scope of CMI in detail because the plaintiff failed to introduce sufficient evidence regarding the requisite intent).
4. See U.S. Copyright Office, Joint Study of Section 1201(g) of the Digital Millennium Copyright Act (2000) (citing S. Rep. No. 105-190, at 1 (1998); H.R. Rep. No. 105-551, pt. 2, at 21 (1998)).
5. 17 U.S.C. § 1202(c) defines CMI to include:
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.
6. Murphy, 650 F.3d at 298–99.
7. See id. at 299; see also Murphy v. Millennium Radio Grp. LLC, No. 08-1743 (JAP), 2010 WL 1372408, at *1 (D.N.J. Mar. 31, 2010) (noting that the photo was originally published in a print edition of the magazine), vacated, Murphy, 650 F.3d 295.
8. Murphy, 650 F.3d at 299.
9. Id. at 298–99.
10. See 17 U.S.C. §§ 1202–03. Section 1202 provides:
(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, or
(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, 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.
Id. § 1202(a)–(b).
Section 1202 limits liability for certain analog and digital transmissions and explicitly provides that it does not prohibit certain lawfully authorized activities by an officer, agent, or employee of or person acting pursuant to a contract with the federal government, a state, or a political subdivision of a state. Id. § 1202(d), (e). Section 1203 provides for, among other things, a civil action for a violation of § 1202 and the availability of statutory or actual damages and attorney’s fees. Id. § 1203.
11. Russell W. Jacobs, Gutters and Hyperlinks: The DMCA and Proper Position of Copyright Management Information, 11 Nw. J. Tech. & Intell. Prop. 163 (2013).
12. Murphy, 650 F.3d 295.
13. Id. at 300–05.
14. Id. at 305.
15. See, e.g., Brown v. Stroud, No. C 08-02348 JSW, 2011 WL 2600661 (N.D. Cal. June 30, 2011) (relying in part on Murphy to reject an interpretation of CMI that limits it to automated copyright management or protection systems but also requiring that the CMI must have “some relation to the Internet, electronic commerce, or the purposes for which the DMCA was enacted”).
16. Jacobs, supra note 11 (discussing cases interpreting CMI and whether it is “conveyed” with the copyrighted work).
17. 17 U.S.C. § 1202(c).
18. Murphy, 650 F.3d at 305.
19. At least one court has determined that CMI on a separate webpage from the copyrighted work is not sufficiently conveyed with the work to allow for a violation of § 1202. See Personal Keepsakes, Inc. v. Personalizationmall.com, Inc., No. 11 C 5177, 2012 WL 414803 (N.D. Ill. Feb. 8, 2012).
20. See Russell W. Jacobs, Copyright Fraud in the Internet Age: Copyright Management Information for Non-Digital Works under the Digital Millennium Copyright Act, 13 Colum. Sci. & Tech. L. Rev. 97 (2012).
21. 17 U.S.C. § 1202(c).
22. See Murphy, 650 F.3d at 299.
23. See 17 U.S.C. § 1202; Gordon v. Nextel Commc’ns & Mullen Adver., Inc., 345 F.3d 922 (6th Cir. 2003) (affirming grant of summary judgment dismissing § 1202 claims due to the plaintiff’s lack of proof regarding intent where “copyright information” was allegedly removed from apparently analog illustrations used in a television commercial).
24. See, e.g., Greg Lastowka, Digital Attribution: Copyright and the Right to Credit, 87 B.U. L. Rev. 41, 73 (2007).
25. Murphy, 650 F.3d at 305 n.14.
26. The so-called right to attribution has an interesting and somewhat tumultuous history under U.S. copyright law, as it was only first recognized to a limited extent under the provisions of the Visual Artists Rights Act of 1990. The list of exclusive rights that copyright owners possess does not include any right to attribution. 17 U.S.C. § 106. The DMCA further altered this landscape, although the law does not provide for any attribution right truly independent of copyright infringement.
27. See Social Media Sites: Photo Metadata Test Results, Embedded Metadata Manifesto, www.embeddedmetadata.org/social-media-test-results.php (last visited Sept. 11, 2013).
28. See 17 U.S.C. § 512.
29. See Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116, 1122 (C.D. Cal. 1999) (finding that the plaintiff had not provided any evidence showing the defendant’s removal actions were intentional), aff’d in part, rev’d in part, and remanded on other grounds by 280 F.3d 934 (9th Cir. 2002), withdrawn and superseded by 336 F.3d 811 (9th Cir. 2003).
30. See Timothy B. Lee, Members of Congress Finally Introduce Serious DMCA Reform, Ars Technica (May 9, 2013), www.arstechnica.com/tech-policy/2013/05/members-of-congress-finally-introduce- serious-dmca-reform.
31. See SOPA Bill Shelved after Global Protests from Google, Wikipedia and Others, Wash. Post, Jan. 20, 2012, http:// articles.washingtonpost.com/2012-01-20/ business/35438100_1_anti-piracy-bills- sopa-bill-wikipedia-and-reddit.