Advanced Copyright Issues on the Internet - Fenwick & West LLP

constitute CMI within the purview of the DMCA. 934 The court found the IQ Group decision,discussed above, influential to its decision, although it chose not to define the scope of CMI asdefinitively as that case did. 935 Nevertheless, the court was persuaded by that case that Section1202 should be “subject to a narrowing interpretation” as follows:While the Court does not attempt in this decision to define the precise contours ofthe applicability of § 1202, the Court nevertheless cannot find that the provisionwas intended to apply to circumstances that have no relation to the Internet,electronic commerce, automated copyright protections or management systems,public registers, or other technological measures or processes as contemplated inthe DMCA as a whole. In other words, although the parties do not dispute thatthe FEATHERS fabric contained [the plaintiff’s] copyright information, there areno facts showing that any technological process as contemplated in the DMCAwas utilized by plaintiff in placing the copyright information onto theFEATHERS fabric, or that defendants employed any technological process ineither their removal of the copyright information from the design or in theiralleged distribution of the design. In short, the Court finds that, in light of thelegislative intent behind the DMCA to facilitate electronic and Internetcommerce, the facts of this case do not trigger § 1202. 936(iv) Jacobsen v. KatzerIn this case, the plaintiff was a leading member of the Java Model Railroad Interface(JMRI) Project, an online, open source community that developed model train software anddistributed it under the open source Artistic License. The defendants also developed softwarefor model railroad enthusiasts. The plaintiff brought a claim under Section 1201(b), alleging thatthe JMRI Project Decoder Definition Files distributed by the JMRI and used by the defendantsconstituted CMI and that by removing some of the information in the files and making copies ofthe files, the defendants had violated Section 1201(b). The defendants brought a motion todismiss the claim. 937The information in the files that the plaintiff claimed constituted CMI were the author’sname, a title, a reference to the license and where to find the license, a copyright notice, and the934935936937Id. at 1194-99.Id. at 1202 n.17 (“The Court is not attempting to define or specify what types of non-digital works are covered.Rather, under the particular facts of this case – that is, in the absence of any facts demonstrating that atechnological process was utilized in connection with either applying the copyright information to the fabric orin removing such information or in subsequently distributing the design – the Court is not persuaded that thecopyright information on the FEATHERS fabric warrants coverage by the DMCA.”) (emphasis in original) &1203 n.18 (“Although the Court is persuaded to some extent by the reasoning set forth in the IQ Groupdecision, the Court does not find it necessary to define the scope of § 1202 as definitively as the IQ Group courtdid (i.e., that the provision applies only to copyright management information that functions ‘as a component ofan automated copyright protection or management system’).”) (quoting IQ Group, 409 F. Supp. 2d at 598).Id. at 1201-02.Jacobsen v. Katzer, 609 F. Supp. 2d 925, 928 & 934 (N.D. Cal. Jan. 5, 2009).- 208 -