The “copyright management” provision of the Digital Millennium Copyright Act, 17 U.S.C. § 1202, prohibits the provision or dissemination of copyright management information that is false, as well as the removal or alteration of copyright management information. An issue that has divided federal courts is whether the scope of this section is limited to digital copyright management systems such as digital rights management technologies, or whether it extends to the removal or alteration of copyright information that is affixed to or associated with works by more traditional means. For example in IQ Group, Ltd. v. Wiesner Pub., LLC, 409 F. Supp. 2d 587 (D.N.J. 2006), the court ruled that section 1202 was intended to cover “copyright management performed by the technological measures of automated systems,” but not “copyright management performed by people.” But several other courts addressing the issue have disagreed, including Associated Press v. AllHeadline News Corp., 608 F. Supp.2d 454 (S.D.N.Y. 2009), in which the court concluded that there was no textual support in the DMCA for limiting the copyright management provision to technological copyright management systems.
In Wayne Cable v. Agence France Presse, et al., 2010 U.S. Dist. LEXIS 73893 (N.D. Ill. July 20, 2010), Cable, the photographer-copyright owner, authorized a realtor to display his photographs of a home on the realtor’s Web site with the proviso that the display include attribution of his authorship and a link to his own own Web site. The Web site included a credit line attributing the photographs to “Photos©2009 wayne cable, selfmadephoto.com.” The copyright notice was encoded as a link to Cable’s own Web site. Cable alleged that the photographs were subsequently copied by defendant Agence France Presse without his permission and displayed elsewhere without attribution. AFP moved to dismiss the DMCA claim, contending that Cable failed to allege that the attribution information functioned as a component of an automated copyright protection or management system and thus it did not constitute “copyright management information” within the scope of the DMCA.
After reviewing the divergent district court opinions, the court in Cable v. Agence France Presse took the plain language approach, concluding that the plaintiff’s name and the link on the Web site constitute copyright management information within the scope of 17 U.S.C. § 1202:
The plaintiff notes, however, that several courts have rejected the IQ Group court’s conclusion regarding the meaning of copyright management information. For instance, in Associated Press v. All Headline News Corp., 608 F. Supp.2d 454 (S.D.N.Y. 2009), the defendant moved to dismiss the DMCA claim on the ground that the information at issue was not copyright management information as defined by the IQ court. Id. at 461-62. The Associated Press court, noting that the IQ court “relied heavily on the DMCA’s legislative history in reaching [its] conclusions about the goals and purpose of the DMCA and limiting its reach,” rejected that approach. Instead, the Associated Press court followed Second Circuit precedent that “has held that legislative history should not be considered as a first resort, and that statutory language should be applied as written.” Id. (citations omitted). Because the defendant had failed to provide any textual support in favor of limiting the definition of copyright management information, the Associated Press court denied the motion to dismiss this count. Id. at 462. See also Interplan Architect, Inc. v. C.L. Thomas, Inc., No. 4:08-cv-03181, 2009 WL 6443117, at *5 (S.D. Tex. Nov. 13, 2009)(“Because this Court does not find that the terms of Section 1202 are sufficiently ambiguous such that resort to legislative history is necessary, this Court does not adopt the findings in Textile Secrets [a case following IQ Group]. Because there is no textual support for Morris’s contention that Section 1202 should be limited to technological processes, this Court declines to import such a limitation.”); Fox v. Hildebrand, No. CV 09-2085 DSF (VBKx), 2009 WL 1977996, at *3 (C.D. Cal. Jul. 1, 2009)(accepting plain language of the DMCA and noting that “Defendants cite two cases that analyze the legislative history of the DMCA to come to the opposite conclusion, but even given ‘contrary indications in the statute’s legislative history,’ a court should ‘not resort to legislative history to cloud a statutory text that is clear’”)(citation omitted).
Likewise, the Seventh Circuit has stated that “‘[s]tatutory interpretation begins with the plain language of the statute,’” U.S. v. Ye, 588 F.3d 411, 414-15 (7th Cir. 2009)(citation omitted), and further that “this court assumes that the purpose of the statute is communicated by the ordinary meaning of the words Congress used; therefore, absent any clear indication of a contrary purpose, the plain language is conclusive.” Id. (citation omitted). Because under the plain language of the statute, the plaintiff’s name and hotlink fall within the scope of “copyright management information,” in the absence of evidence to the contrary, which may be considered in the context of future dispositive motions, the court denies the motion to dismiss this claim.
The court also declined to dismiss Cable’s Lanham Act and related state law claims.
The manner in which Cable’s attribution was displayed relative to the subject photographs can still be viewed on the realtor’s Web site. The home for sale is notable for, among other things, being located directly next to the Obama family residence in Chicago, Illinois.