Advanced Copyright Issues on the Internet - Fenwick & West LLP

With respect to the first reason, the court ruled that protecting a logo, functioning as aservice mark, under the CMI provisions would turn the DMCA “into a species of mutanttrademark/copyright law, blurring the boundaries between the law of trademarks and that ofcopyright.” 917 Specifically, the court was concerned that if every removal or alteration of a logoattached to a copy of a work gave rise to a cause of action under the DMCA, the DMCA wouldbecome an extension of, and overlap with, trademark law. There was no evidence that Congressintended such an extreme outcome in enacting the DMCA. 918The court then turned to the proper interpretation of the definition of CMI, noting that theinterpretation of that definition was a matter of first impression. Although the court noted thatthe definition, read literally, seemed to apply wherever any author had affixed anything thatmight refer to his or her name, examination of the legislative history and other extrinsic sourcesconvinced the court that the statute should be subject to a narrowing interpretation. 919 Citing anarticle by law professor Julie Cohen 920 and the legislative history of the WIPO <strong>Copyright</strong> Treatythat led to enactment of the DMCA to implement it, the court concluded that protected CMIshould be limited to components of automated copyright protection or management systems.Specifically, WIPO was intended to protect CMI as part of a double protection schemefor technical measures – to allow the protection of copyrighted works by the application oftechnical measures restricting access thereto and protecting copyright rights therein, and toprotect the technical measures themselves against those who would crack them by othertechnologies or machines. Thus, the court found that in the framework of the WIPO treaties,technical measures such as CMI were viewed as components of automated copyright protectionsystems. 921 This same understanding of CMI was embodied in the White Paper of theInformation Infrastructure Task Force released in September of 1995, which presented a draft ofSections 1201 and 1202, and noted that systems for managing rights in works were beingcontemplated in the development of the national information infrastructure to serve the functionsof tracking and monitoring uses of copyrighted works as well as licensing of rights andindicating attribution, creation and ownership interests. To implement these rights managementfunctions, the White Paper noted that information would likely be included in an “electronicenvelope” containing a digital version of a work to provide information regarding authorship,copyright ownership, date of creation or last modification, and terms and conditions ofauthorized uses. 922From this the court concluded the White Paper demonstrated that the Working Group onIntellectual Property Rights, in drafting Section 1202, “understood this section to protect theintegrity of automated copyright management systems functioning within a computer network917918919920921922Id. at 592.Id.Id. at 593.Julie E. Cohen, “<strong>Copyright</strong> and The Jurisprudence of Self-Help,” 13 Berkeley Tech. L.J. 1089 (1998).409 F. Supp. 2d at 593-95.Id. at 594-95.- 205 -