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,” 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.

The cause of action for misappropriation of reports of breaking news, i.e., “hot news” misappropriation, has been around for going on a century, since the U.S. Supreme Court opinion in International News Service v. Associated Press, 248 U.S. 215 (1918). In that landmark case the Court recognized a “quasi property” right in such reports on the part of a news-gathering organization under federal common law.

Survival of the hot news misappropriation claim, and its applicability to online news aggregators, has been the subject of much discussion and debate as news aggregation sites have become ubiquitous on the Internet, on sites ranging from Google News to thousands of more modest offerings. The AP, which was the prevailing plaintiff in the landmark case 90 years ago, has been successful in obtaining settlements with a number of online news aggregators that used its material, including a settlement with Google News in 2006 and a settlement with Moreover and its parent company Verisign last year.

The AP has again made progress in this ongoing battle, this time in its hot news misappropriation lawsuit against online aggregator All Headline News Corp. In this case, the court issued a ruling that recognizes not only the AP’s misappropriation claim, but its claim under the Digital Millennium Copyright Act copyright management provision as well.