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Recent Uses of Software and the DMCA

By Richard Raysman and Peter Brown

One of the motivations for enacting the Digital Millennium Copyright Act (DMCA), 17 U.S.C. '1201 et seq., was the acknowledgement by Congress of “the ease with which pirates could copy and distribute a copyrightable work in digital form was overwhelming the capacity of conventional copyright enforcement to find and enjoin unlawfully copied material.” See, Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001). Among the provisions created to redress this rampant infringement were the prohibitions against: 1) removing copyright management information (CMI); and 2) circumventing technological measures in place to prevent infringement. See, 17 U.S.C. ”1202(c), 1201(a). CMI is defined in the DMCA as information communicated with a copyrighted work which identifies the nature of the copyright. In one notable case involving CMI, a news organization was found to have violated the DMCA by knowingly distributing pictures with CMI that included authorship credit attributed to the wrong photographer. These two DMCA prohibitions are included in a broader category of protections afforded copyright holders called digital rights management (DRM), which is an access control technology used to prevent misuse of copyrighted works.

Each is controversial. Anti-circumvention preventions have arguably brought about unintended consequences, including jeopardizing fair use and chilling free expression and scientific research, and CMI has alleged to have been defined so broadly as to include logos, which could theoretically allow a trademark holder to invoke DMCA protections. As another of the many examples, almost 17 years after the passage of the DMCA, there remains a dispute as to whether CMI is only protected if it involves the use of a “digital” technological measure, such as CMI embedded in the software, or whether it is also protected when used in an “analog” measure, such as the author manually affixing the author's name to the work. See also, Murphy v. Millennium Radio Grp., 650 F.3d 295 (3d Cir. 2011) (printed credit on image that is not part of an “automated copyright protection or management system” is CMI). Another source of disagreement is whether a “simple” copyright notice constitutes CMI within the meaning of the DMCA.

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