In Murphy v. Millenium Radio, 2011 WL 2315128 (3d Cir. June 14, 2011), the Third Circuit is the first court of appeals to reach the question of whether removing an author's name from a photograph constitutes a violation of section 1202 of the Digital Millenium Copyright Act 17 U.S.C. 1202. The Third Circuit noted a disagreement among district courts on the question.
The case involves a photographer who took photographs of WKXW radio personalities Craig Carton and Ray Rossi for a magazine (picture above). The shock jocks posed naked behind signs covering their privates. A WKXW employee scanned the photographic image, uploaded it, and the radio station invited listeners to digitally modify the image for a competition.
When the image was uploaded, a "gutter credit" (inner margin) from the magazine containing the photographer's name was removed.
The Third Circuit reversed the trial court's grant of summary judgment, permitting the DMCA 1202 claim to proceed. The Third Circuit also permitted a defamation claim to proceed, Rossi and Carton allegedly called the photographer a homosexual and destroyed transcripts of the show.
The Third Circuit's decision and 17 U.S.C. 1202 and 17 U.S.C. 1203 below:
§ 1202. Integrity of copyright management information3
(a) False Copyright Management Information. — No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement —
(1) provide copyright management information that is false, or
(2) distribute or import for distribution copyright management information that is false.
(b) Removal or Alteration of Copyright Management Information. — No person shall, without the authority of the copyright owner or the law —
(1) intentionally remove or alter any copyright management information,
(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or
(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.
(c) Definition. — As used in this section, the term “copyright management information” means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work:
(1) The title and other information identifying the work, including the information set forth on a notice of copyright.
(2) The name of, and other identifying information about, the author of a work.
(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
(4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
(5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.
(6) Terms and conditions for use of the work.
(7) Identifying numbers or symbols referring to such information or links to such information.
(8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.
(d) Law Enforcement, Intelligence, and Other Government Activities. — This section does not prohibit any lawfully authorized investigative, protective, information security, or intelligence activity of an officer, agent, or employee of the United States, a State, or a political subdivision of a State, or a person acting pursuant to a contract with the United States, a State, or a political subdivision of a State. For purposes of this subsection, the term “information security” means activities carried out in order to identify and address the vulnerabilities of a government computer, computer system, or computer network.
(e) Limitations on Liability. —
(1) Analog transmissions. — In the case of an analog transmission, a person who is making transmissions in its capacity as a broadcast station, or as a cable system, or someone who provides programming to such station or system, shall not be liable for a violation of subsection (b) if —
(A) avoiding the activity that constitutes such violation is not technically feasible or would create an undue financial hardship on such person; and
(B) such person did not intend, by engaging in such activity, to induce, enable, facilitate, or conceal infringement of a right under this title.
(2) Digital transmissions. —
(A) If a digital transmission standard for the placement of copyright management information for a category of works is set in a voluntary, consensus standard-setting process involving a representative cross-section of broadcast stations or cable systems and copyright owners of a category of works that are intended for public performance by such stations or systems, a person identified in paragraph (1) shall not be liable for a violation of subsection (b) with respect to the particular copyright management information addressed by such standard if —
(i) the placement of such information by someone other than such person is not in accordance with such standard; and
(ii) the activity that constitutes such violation is not intended to induce, enable, facilitate, or conceal infringement of a right under this title.
(B) Until a digital transmission standard has been set pursuant to subparagraph (A) with respect to the placement of copyright management information for a category of works, a person identified in paragraph (1) shall not be liable for a violation of subsection (b) with respect to such copyright management information, if the activity that constitutes such violation is not intended to induce, enable, facilitate, or conceal infringement of a right under this title, and if —
(i) the transmission of such information by such person would result in a perceptible visual or aural degradation of the digital signal; or
(ii) the transmission of such information by such person would conflict with —
(I) an applicable government regulation relating to transmission of information in a digital signal;
(II) an applicable industry-wide standard relating to the transmission of information in a digital signal that was adopted by a voluntary consensus standards body prior to the effective date of this chapter; or
(III) an applicable industry-wide standard relating to the transmission of information in a digital signal that was adopted in a voluntary, consensus standards-setting process open to participation by a representative cross-section of broadcast stations or cable systems and copyright owners of a category of works that are intended for public performance by such stations or systems.
(3) Definitions. — As used in this subsection —
(A) the term “broadcast station” has the meaning given that term in section 3 of the Communications Act of 1934 (47 U.S.C. 153); and
(B) the term “cable system” has the meaning given that term in section 602 of the Communications Act of 1934 (47 U.S.C. 522).
§ 1203. Civil remedies4
(a) Civil Actions. — Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.
(b) Powers of the Court. — In an action brought under subsection (a), the court —
(1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution;
(2) at any time while an action is pending, may order the impounding, on such terms as it deems reasonable, of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation;
(3) may award damages under subsection (c);
(4) in its discretion may allow the recovery of costs by or against any party other than the United States or an officer thereof;
(5) in its discretion may award reasonable attorney's fees to the prevailing party; and
(6) may, as part of a final judgment or decree finding a violation, order the remedial modification or the destruction of any device or product involved in the violation that is in the custody or control of the violator or has been impounded under paragraph (2).
(c) Award of Damages. —
(1) In general. — Except as otherwise provided in this title, a person committing a violation of section 1201 or 1202 is liable for either —
(A) the actual damages and any additional profits of the violator, as provided in paragraph (2), or
(B) statutory damages, as provided in paragraph (3).
(2) Actual damages. — The court shall award to the complaining party the actual damages suffered by the party as a result of the violation, and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages, if the complaining party elects such damages at any time before final judgment is entered.
(3) Statutory damages. — (A) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.
(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.
(4) Repeated violations. — In any case in which the injured party sustains the burden of proving, and the court finds, that a person has violated section 1201 or 1202 within three years after a final judgment was entered against the person for another such violation, the court may increase the award of damages up to triple the amount that would otherwise be awarded, as the court considers just.
(5) Innocent violations. —
(A) In general. — The court in its discretion may reduce or remit the total award of damages in any case in which the violator sustains the burden of proving, and the court finds, that the violator was not aware and had no reason to believe that its acts constituted a violation.
(B) Nonprofit library, archives, educational institutions, or public broadcasting entities. —
(i) Definition. — In this subparagraph, the term “public broadcasting entity” has the meaning given such term under section 118(g).
(ii) In general. — In the case of a nonprofit library, archives, educational institution, or public broadcasting entity, the court shall remit damages in any case in which the library, archives, educational institution, or public broadcasting entity sustains the burden of proving, and the court finds, that the library, archives, educational institution, or public broadcasting entity was not aware and had no reason to believe that its acts constituted a violation.
§ 1204. Criminal offenses and penalties5
(a) In General. — Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain —
(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and
(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.
(b) Limitation for Nonprofit Library, Archives, Educational Institution, or Public Broadcasting Entity. — Subsection (a) shall not apply to a nonprofit library, archives, educational institution, or public broadcasting entity (as defined under section 118(g)).
(c) Statute of Limitations. — No criminal proceeding shall be brought under this section unless such proceeding is commenced within five years after the cause of action arose.
Murphy v Millenium Radio
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