Advanced Copyright Issues on the Internet - Fenwick & West LLP

crawler’s operation. 955 The court found that the more applicable provision was that of Section1202(b)(3), which prohibits distribution of copies of works knowing that CMI has been removedor altered without authority of the copyright owner or the law, knowing or having reason toknow that it will induce, enable, facilitate, or conceal an infringement. The court also found noviolation of this section, however, because users who clicked on the thumbnail version of theimages were given a full-sized version, together with the name of the website from which theimage was obtained (and an opportunity to link there), where any associated CMI would beavailable. 956 “Users were also informed on Defendant’s Web site that use restrictions andcopyright limitations may apply to images retrieved by Defendant’s search engine.” 957 Based onthese facts, the court concluded that the defendant did not have “reasonable grounds to know”under Section 1202(b)(3) that it would cause its users to infringe the plaintiff’s copyrights:Plaintiff’s images are vulnerable to copyright infringement because they aredisplayed on Web sites. Plaintiff has not shown users of Defendant’s site wereany more likely to infringe his copyrights, any of these users did infringe, orDefendant should reasonably have expected infringement. 958Accordingly, the court concluded that there had been no violation of the DMCA.(ii)Thron v. Harper Collins PublishersIn Thron v. Harper Collins Publishers, 959 the plaintiff alleged that the defendantmisappropriated two of his allegedly copyrighted photographs for use in a book published by thedefendant. The plaintiff further contended that the defendant’s subsequent efforts to publicizethe book through the Internet violated the CMI provisions of the DMCA because the plaintiffhad provided Amazon.com with a digital image of one of the photographs that was allegedlyimpermissibly altered to remove certain unspecified information related to the plaintiff’scopyright registration. The court rejected this claim because the plaintiff’s copyright registrationwas itself invalid and because the plaintiff had submitted no competent, admissible evidence tosupport any finding that the defendant removed or altered the information intentionally, asrequired by the statute.(iii) Gordon v. Nextel CommunicationsIn Gordon v. Nextel Communications, 960 the plaintiff brought suit against Nextel and itsadvertising agency for copyright infringement for the unauthorized use of several of his dentalillustrations in a television commercial for Nextel’s two-way text message. The plaintiff alsoclaimed a violation of the CMI provisions of the DMCA based on alleged removal of the955956957958959960Id.Id.Id.Id. at 1367.64 U.S.P.Q.2d 1221 (S.D.N.Y. 2002).68 U.S.P.Q.2d 1369 (6th Cir. 2003).- 213 -