Third Circuit: Copyright Infringement - Removing Photographer's Name from Image Violates DMCA

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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Fair Use Fridays: Kinect Hacks - From Forbidden To Encouraged By Microsoft

Software manufacturers usually try to block consumers from modifying or improving their products. This is anticompetitive conduct. Microsoft started out by first blocking hackers on its new Kinect 3d camera, and now it is encouraging them. Story and more hacks on Mashable here. When software encryption stands in the way of innovation, progress favors hackers who promote product improvement and adoption.

It is distressing when copyright owners abuse the monopoly granted by copyright to discourage progress and it is good to see Microsoft embracing change.  Copyright is combined with contract law to defeat the first sale doctrine in an anticompetitive manner. The Kinect technology has so many potential applications, particularly to assist the disabled.

Reverse engineering is addressed by the Digital Millenium Copyright Act 17 USC 1201(f). A good summary of the state of the law from EFF here.

Scary video from University of Southern California Institute of Creative Technologies showing how the Kinect hack will cure childhood obesity and diabetes by exercising kids while they are glued to a television screen for six hours a day.



More on Primesense cameras here.

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United States Pirate Party Platform - Abolish the DMCA!

Logo of the United States Pirate Party
(courtesy Wikipedia)

To learn about joining the United States Pirate Party, go here.

Platform (courtesy Wikipedia)

The Pirate Party's platform centers around issues of intellectual property. "Like its international counterparts, the USPP’s main practical concerns are digital intellectual property and privacy laws—specifically, the abolition of a 1998 digital U.S. copyright law, the reduction of copyrights to 14 years (from 95 years after publication, or 70 years after the author’s death), and the expiration of patents that don’t result in significant progress within four years (as opposed to 20 years)."[3]

Reform of TrademarkTrademarks are abused around the world, in that they contain elements which are protected by either copyright or patent. A single protection for trademarks should exist, and fair use provisions made as with copyright. Trademarks should also not appear as the central issue on any dispute not arising from fraud.

Abolition of Digital Rights ManagementAll DRM and similar schemes do are to encourage people to find ways to prevent loss by circumvention. DRM is the key issue in the DMCA, and the chief reason that our population is now breaking the law en masse. DRM itself also inhibits the rights of artists to have their works experienced in as close to a live act as possible.

Right to PrivacyRegulatory bodies are, by their very nature, governing. They should therefore be prohibited from interfering in a person's private affairs. However, people should remember that their private affairs should remain private. Passwords, encryption, and other forms of electronic privacy should be afforded the same privileges as sealed envelopes.

Right to Government TransparencyThe population should at all times understand what a governing body is doing, with or to whom it is doing these things, and for what reasons. Though there is a need for national security for so long as there are enemies outside of our borders, there should never be any issue with ordinary citizens who need information. Likewise, the responsibility of citizens is to ensure that information which is of a sensitive nature is handled in a sensitive manner, so that it does not fall into the hands of those who would misuse such information to harm human life.

Reform of CopyrightCopyright is flagrantly abused around the world, has an unreasonable term length, and is used to prevent, rather than promote, innovation. This is directly counter to its stated intent in the beginning, of protecting authors' works. Additionally, the right of use should never be in question; merely the right to be credited. The term should be reverted to the 14 year term of the Copyright Act of 1790, with a right to renew for 14 additional years, at most.

Right to AssemblePeaceful assembly is guaranteed by our Constitutional First Amendment, just as free speech and free press is. Permits to protest should only be necessary if protests are planning to be disruptive (marching down streets, etc.). Police should not have a right to—though they are currently not prohibited from—disrupting the exercise of the expression of unpopular free speech.

This also covers community organization, where the political and other needs of a community sometimes requires localized political activism. People need to be able to know that what they believe can be supported; and they need to know that what they believe can be correct—or corrected.

Reform of PatentPatent is abused extensively around the world, has become the chief legal means to suppress innovation, and is largely to blame for stymieing technological progress. The practice of shelving a patent (failing to develop a patented idea which competes with one's own ideas instead of developing both and allowing innovation to spring from them) is abhorrent, and needs to be curtailed within the law. Patents which fail to be developed or have significant progress in any four-year term should be unenforceable.

Right to Free PressSpeech is protected under our Constitution, even unpopular speech, though action carries with it consequences. However, recent erosion of the First Amendment by inattentive lawmakers has led to a suppressive ideology that endangers journalistic freedoms (a necessary freedom in order to keep governments, political parties, and every other organization honest).

Underscored by recent events in St. Paul, reporters who are arrested by mistake for being in an area to report the news should have all charges summarily dismissed unless they were in fact doing damage or harm. This should be a standing policy in all city governments. Reporters form a necessary part of our government process, in bringing truth to the public.

News agencies which seek to misreport the news cannot be trusted to serve the best interests of the people, but there is a difference between news and entertainment. News agencies should have the freedom to decide which is which. However, news agencies should also be restricted from becoming the mouthpieces of special interest. One of the major issues is the limitation of small media outlets. Big media should not control 80% of the market; there should be a limit to the amount of the market that large networks control in any area.

Rejection of the Concept of Copyright infringement or "Online Piracy"Pirate Party Members hold the idea that sharing anything online is piracy is absurd on its face. Some say that actual piracy requires forceful and aggressive acts, committed against those who would keep a cargo safe from harm. The cargo in this case of this viewpoint is the freedom to act. Members would take it from those who jealously guard it for themselves and divide it amongst everyone in the country.

The Pirate Party wants to "raid" the law and "carry away" (repeal) laws which do not serve those on their metaphorical boat. The trick of it is: we're all in the same boat. It is in service to those on our boat (the Earth) that we aim to help.

Members are not willing to accept that file sharing should be banned (and will take steps, once party members are in office, to ensure that any laws in this regard are adamantly opposed, since in their perspective technology isn't the problem, but rather education about what its proper use is). On the other hand, we do agree that there is a significant amount of wrong being done to our rights in the name of protecting those whose sole aim for over 50 years has been the control and manipulation of human minds. Brainwashing our population is against our national interest in maintaining a democracy.

Abolition of the Digital Millennium Copyright Act and related subsequent provisions within copyright lawThe Digital Millennium Copyright Act of 1998 provided for legal repercussions for circumvention of copy protection, as well as making backup copies of any media illegal. This act has resulted in the intimidation, prosecution, and/or conviction of tens of thousands of people in our country—people who are otherwise law-abiding and who are not interested in being labeled thieves or crooks for doing what the internet was intended to do: share ideas. This is therefore a First Amendment issue, being freedom of expression, and we call for a repeal of this highly illogical and vertically-oriented law on the grounds that it is simply a bad law.




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Fair Use Fridays: Ripping DVDs For Documentary Films - Is There A Right To High Quality Free Speech?

We know from the recent Salinger/Colting case discussed here that prior restraints on speech must be weighed when we look at injunctions in the copyright infringement context.

But what about in the fair use context?  Let's look at the statute and think about a documentary filmmaker who wants to make a "fair use" of someone else's copyrighted work:

Section 107 of the Copright Act - 17 U.S.C. § 107. Limitations on exclusive rights: Fair use provides:


Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—


(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;


(2) the nature of the copyrighted work;


(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and


(4) the effect of the use upon the potential market for or value of the copyrighted work.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
 
The Digital Millenium Copyright Act makes it a crime to circumvent encryption to rip someone else's copyrighted materials.  So isn't that criminal statute an impermissible prior restraint on free speech?
 
Doc filmmakers can't make good quality films without ripping DVDs.  They can get lower quality elsewhere.
 
The Copyright Office should act soon because the International Documentary Association has asked that the exemptions to the DMCA be reviewed.  HT to Techdirt, Hillicon Valley, reports here.  Mike Masnick at Techdirt is pessimistic, read the link:

Documentary Filmmakers Want DMCA Exemption; But Almost Definitely Won't Get It Techdirt

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Beware of Default Judgments: Captcha Gotcha Spammers Under Digital Millenium Copyright Act

Craigslist is a wildly popular service for posting free classified advertisements.  Over the years I have hired a number of employees through Craigslist - responding quickly to an ad shows tech savvy, computer literacy and some level of good judgment.

Over the years we have all entered fuzzy, annoying-looking numbers and words into Captcha fields probably without thinking too much about it.   Captcha is a free spam-proofing device used by many websites to ensure that a human being is entering a website and using it for legitimate purposes.  There are numerous providers of Captchas, check out here and here.

From Wikipedia:

A CAPTCHA or Captcha (pronounced /ˈkæptʃə/) is a type of challenge-response test used in computing to ensure that the response is not generated by a computer. The process usually involves one computer (a server) asking a user to complete a simple test which the computer is able to generate and grade. Because other computers are unable to solve the CAPTCHA, any user entering a correct solution is presumed to be human. Thus, it is sometimes described as a reverse Turing test, because it is administered by a machine and targeted to a human, in contrast to the standard Turing test that is typically administered by a human and targeted to a machine. A common type of CAPTCHA requires that the user type letters or digits from a distorted image that appears on the screen.

I found one 2007 case finding CAPTCHA to be a technological measure to protect copyrighted materials, the circumvention of which would be a violation of the Digital Millenium Copyright Act. Ticketmaster L.L.C. v. RMG Technologies, Inc., 507 F. Supp. 2d 1096 (C.D. Cal. 2007)

In Craigslist, Inc. v. Naturemarket, Inc., C 08-5065 PJH, 2010 WL 807446 (N.D. Cal. Mar. 5, 2010) Craigslist sued a spammer who offered software that did auto posting on Craigslist and sold telephone-verified Craigslist accounts to other spammers or marketers.  To develop the software, the spammer had to access Craigslist, obtain data, code and images, steal telephone-verified accounts, and distribute that information.

When we go on a website, we usually click "I accept" the terms of use ("TOU").  This creates a contract or license agreement (a k a "end user license agreement" or EULA) governing use of the information obtained through the website or database accessed.

In Craigslist, Inc. v. Naturemarket, Inc., Craigslist sought to pursue the spammer through the Digital Millenium Copyright Act and through the terms of the TOU (essentially contract claims).

Craiglist was told by the spammer that he'd sold about $40,000 worth of the autoposter software.  Craigslist pursued both  Digital Millennium Copyright Act, 17 U.S.C. §§ 1201 ("DMCA") and the TOU (Contract) claims.

The spammer did not hire a lawyer to defend the lawsuit and failed to respond to pleadings and court notices.

Craiglist obtained default judgments pursuant to Rule 55 of the Federal Rules of Civil Procedure under both the DMCA for statutory damages of $470,000 and under the TOU (Contract) for $840,000. The court found the liquidated damages clause of $200 per unauthorized post to be enforceable.   The court accepted Craigslist's lowest estimate of unauthorized posts.  The spammer, Igor Gasov was held personally liable.

 Craigslist alleged that Defendants violated § 1201(a)(2) and (b)(1) of the DMCA. “A plaintiff alleging a violation of § 1201(a)(2) must prove: (1) ownership of a valid copyright on a work, (2) effectively controlled by a technological measure, which has been circumvented, (3) that third parties can now access (4) without authorization, in a manner that (5) infringes or facilitates infringing a right protected by the Copyright Act, because of a product that (6) the defendant either (I) designed or produced primarily for circumvention; (ii) made available despite only limited commercial significance other than circumvention; or (iii) marketed for use in circumvention of the controlling technological measure.” Ticketmaster L.L. C., 507 F.Supp.2d at 1111 (quoting Chamberlain Group, Inc. v. Skylink Tech., Inc., 381 F.3d 1178, 1203 (Fed.Cir.2004)).

The court found defendant's "auto poster" software to be a product violating the DMCA because it permitted posters to circumvent Craigslist's Captcha and telephone verification controls.

Looking at Google, we can see that the spammers did not get the message that auto poster software and selling verified Craigslist accounts can lead to significant personal liability.  It appears that the market for spamming Craiglist is quite large.  It is very dangerous not to defend these cases.   Craigslist's lawyers were awarded $65,038.20 in legal fees and $1,712.07 in costs.

Collection of Lawsuits Against Bloggers on Citizen Media Law Project

Citizen Media Law Project maintains a summary of lawsuits against bloggers here with helpful links to case documents, an excellent resource.

The Citizen Media Law Project (CMLP) is jointly affiliated with Harvard Law School’s Berkman Center for Internet & Society, a research center founded to explore cyberspace, share in its study, and help pioneer its development, and the Center for Citizen Media at Arizona State University, an initiative to enhance and expand grassroots media.