Advanced Copyright Issues on the Internet - Fenwick & West LLP

The plaintiff brought a claim for violation of Section 1202 of the DMCA on the groundthat she had included title and copyright information on “End of Serenity,” which appeared inthe photograph of it that the reporter took, but which was cropped out of the version of thephotograph distributed by AP. Citing the IQ Group case, AP contended that Section 1202 wasnot applicable because the plaintiff’s copyright notice on her photograph was not “digital.” Theplaintiff testified in her deposition that she used a computer program called “<strong>Advanced</strong>Brochures” in a two-step process to print the title, her name, and the copyright notice on allprintouts of her photograph. The court ruled that this technological process was sufficient tocome within a digital “copyright management system” as defined in the statute. Moreover, thecourt noted that Section 1202(c) defines CMI to include “any” of the information set forth in theeight categories enumerated, “including in digital form.” To avoid rendering those termsuperfluous, the court held the statute must also protect non-digital information. Accordingly,the court concluded that the statute was applicable to the facts of the case. 930AP sought summary judgment on the CMI claim on the ground that the metadataaccompanying the photograph distributed by AP stated that the photograph was taken by theplaintiff. However, the court noted that the metadata also identified the plaintiff as a “stringer,”from which recipients could have inferred that AP owned the copyright, and that the was noclear statement notifying recipients that the plaintiff owned the copyright to “End of Serenity.”In addition, the court noted a factual dispute concerning whether the reporter had intentionallycropped the copyright notice out of the photograph, as the plaintiff alleged. Accordingly, thecourt denied AP’s motion for summary judgment. 931(iii) Textile Secrets Int’l, Inc. v. Ya-Ya Brand Inc.In this case, the plaintiff alleged that fabrics sold by the defendants infringed theplaintiff’s copyright in its “FEATHERS” fabric design. The plaintiff also alleged that thedefendants had violated the CMI provisions of the DMCA by removing the plaintiff’s name andthe copyright symbol from the selvage (the edge or border of fabric that is intended to be cut offand discarded) of its fabrics, as well as an attached tag stating that the design was a registeredwork of the plaintiff, and then making copies of the fabrics. The central issue in the case waswhether the information on the selvage and the tag constituted CMI. 932The defendants urged that, in view of the legislative history of the DMCA, the CMIprovisions should be construed to apply only to transactions on the Internet or in the electronicmarketplace. The plaintiff argued that a plain reading of the CMI provisions should lead to aconclusion that CMI can be protected on all types of works, in both digital and non-digitalform. 933 After an extensive survey of the history of the CMI provisions of the DMCA, includingthe White Paper of the National Information Infrastructure Task Force, congressional reports,and the WIPO treaties, the court ruled that the information on the selvage and the tag did not930931932933Id. at *4-5, 15.Id. at *15-17.Textile Secrets Int’l, Inc. v. Ya-Ya Brand Inc., 524 F. Supp. 2d 1184, 1192-93 (C.D. Cal. 2007).Id. at 1193-94.- 207 -