Advanced Copyright Issues on the Internet - Fenwick & West LLP

eference to “including in digital form” in the statutory definition of CMI in Section 1202(c)indicated that the definition was not limited to notices in digital form. Accordingly, theplaintiff’s allegation that the defendant had copied the plaintiff’s architectural drawings, onwhich the plaintiff had handwritten a copyright notice, and erroneously designated itself as thecopyright owner on the copied drawings, stated a claim under Section 1202(b) of the DMCAsufficient to survive the defendant’s motion to dismiss. 941(viii) Jacobsen v. KatzerIn this case, the plaintiff was the owner of copyright in certain “Decoder Definition TextFiles” used in connection with open source model train software developed under the JavaModel Railroad Interface (JMRI) Project. The Decoder Definition Text Files included certainattribution information that the plaintiff alleged constituted CMI: the author’s name, a title, areference to the applicable open source license and where to find the license, a copyright notice,and the copyright owner. The plaintiff alleged that the defendant’s copying of the DecoderDefinition Text Files from the JMRI web site and removal of such information violated theDMCA’s CMI provisions. 942Citing the IQ Group and McClatchey decisions, the court noted that the DMCA protectsonly “CMI performed by the technological measures of automated systems.” 943 The plaintiffalleged that he used a software script to automate adding copyright notices and informationregarding the license and uploaded the files on the Internet through SourceForge.net, and that thedefendants had downloaded the files and removed the names of the authors and copyright holder,title, reference to license, where to find the license and the copyright notice, and had renamed thefiles and referred to their own copyright notice and named themselves as author and copyrightowner. 944 The court found, based on the allegations in the complaint, that there had been sometechnological process employed to protect the attribution information in the Decoder DefinitionText Files. Further, there was no dispute that the defendants had employed a tool to translate theJMRI files to a format for their own use without copying this attribution information.Accordingly, the court granted summary judgment to the plaintiff that the attribution informationconstituted CMI protected by the DMCA. However because there remained disputed issues offact regarding the defendants’ knowledge and intent, the court denied the plaintiff’s motion forsummary judgment on liability under the CMI provisions of the DMCA. 945(ix) Murphy v. Millennium Radio Group LLCIn this case, the court held that photo credits appearing in the gutter of a magazine photo,did not constitute CMI. The defendant scanned a print copy of the plaintiff’s copyrighted photoand then posted the image on a radio station web site. No copyright notice appeared on the print941942943944945Fox v. Hildebrand, 2009 U.S. Dist. LEXIS 60886 at *2, 5-8 (C.D. Cal. July 1, 2009).Id. at *2 & *19-20.Id. at *20.Id. at *20-21.Id. at *21.- 210 -