FALL 2010
Cyberlaw
Course No.: 9200-710 (& 810)-001
Course ID:  85723 & 85725
Time: M, W 4:45-6:15 p.m.
Room TBD
Professor Jay Dratler, Jr.
Across from Room 231D (IP Alcove)
Home: 330-835-4537
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008, 2010  Jay Dratler, Jr.  
For permission, see CMI.

Notes and Questions
on Copyright Management Information (CMI)

1.  Conceptually, Copyright Management Information under Section 1202 is a more modern and comprehensive form of copyright notice under Sections 401 and 402.  Section 1202(c) defines CMI and lists the information that copyright owners may include in it and that, if included, the statute will protect.  Does Section 1202 protect, as part of CMI—if used—any of the elements of copyright notice identified in Sections 401 and 402?  If so, which ones?  Is Section 1202 clear on this point?

The Copyright Act still contains provisions criminalizing the use of fraudulent copyright notices and the fraudulent removal or alternation of copyright notices.  See 17 U.S.C. § 506(c), (d).  The penalties are light, however; the maximum penalty is a fine of $2,500.  The similar but more complex provisions of Section 1202 invoke all the civil and criminal remedies of Sections 1203 and 1204, which are considerably more powerful.  Thus, with respect to both substance and remedies, CMI can be thought of as a "beefed up" copyright notice.

This observation, however, is only approximate.  The primary purpose of copyright notice was to notify the public of a claim of copyright ownership or (by the absence of copyright notice) to identify material in which no copyright was claimed.  The purposes of CMI also include notifying the public, but they extend far beyond that.  As the name copyright management information suggests, CMI is designed to facilitate the management of copyrighted properties by, among other things, assisting potential users of copyrighted works in using them and, where necessary, locating the copyright owners and their designees for the purpose of requesting permission for use.

2.  An important additional purpose of CMI, as compared with copyright notice, is allowing the lawful use of copyright works to be automated.  The statute allows copyright owners to include in CMI such things as the terms of lawful use and hyperlinks to those terms.  See 17 U.S.C. 1202(c)(6), (7).  It thus permits a copyright owner, for example, to embed in a digital file for a copyrighted work instructions—or links to instructions—that "streaming" of the work is permitted, but downloading is not.  This information, like the "Copy Switch" in the Streambox VCR software in RealNetworks, Inc. v. Streambox, Inc., could be used by a software or hardware product automatically to limit the use of work to streaming, and exclude downloading, thereby automatically providing for lawful use.

The use of CMI thus has enormous potential for both copyright owners and users of copyrighted works.  It promises a regime in which appropriate software and hardware products automatically observe and enforce license restrictions in a manner transparent to ordinary users of copyrighted works.  If all the technology works property, and if it is not circumvented by "hackers," copyright owners can be sure that their works are being used lawfully—and that therefore they are enjoying the economic returns that underlie the constitutional incentive for creativity.  At the same time, users can be sure that, if the software and hardware products they use are authorized and not tampered with, their ordinary use of those products to enjoy copyrighted material is lawful and noninfringing.  In short, automated use of CMI has the potential to take some of the pain, and much of the drudgery, out of copyright enforcement and compliance.

3.  The enormous potential of CMI for helping to automate lawful use of copyrighted works highlights the dilemma in Kelly.  The court there was faced with a wonderful new technology—a search engine for images—whose use in its present form might limit the ability of owners of copyright in those images to use CMI to control lawful use automatically.  Allowing the search engine to ignore CMI contained in copyright notices related to the images might impair widespread automation of the lawful use of those images.  Yet, at the same time, overly fastidious concern for CMI might impair the development and use of the search engine, which makes those images available to millions of users of the World Wide Web who otherwise might never find them.  In this policy dilemma of constitutional proportions, do you think the court made the right judgment?  Was it influenced by the defendant's various modifications of its service, which appeared to have been motivated by a desire to avoid legal liability?

4.  The Kelly case deserves careful scrutiny, for it is one of the few cases to address CMI issues in detail.  But first let us review briefly the court's decision on the question of fair use.  Was the court's decision on each of the four fair-use factors fair and appropriate?  Was its finding on the issue of market effect plausible?  Is it likely that the use of thumbnail images for indexing purposes would severely impair the market for the full-size images?  Does the quality of thumbnail images make such a market effect likely, or does their quality degrade when they are "blown up" to full size?  Did the court balance the four factors properly and reach the correct conclusion?

How much does the correctness of the court's conclusion depend upon the precise effect of the technology used?  If the thumbnail images could be downloaded and enlarged to full size without any loss of quality as compared to the original full-sized images, wouldn't that change the conclusion on the likelihood of a market effect?

5.  The Kelly court's analysis of the CMI issues deserves careful scrutiny.  The court appears to assume that the copyright notices next to the original images (which the defendant's search engine ignored because they were not part of the images) were CMI.  Is that necessarily true?  Is every element of a copyright notice ipso facto CMI?

The court also does not analyze whether the copyright notices were associated with the images in the manner that the statute requires.  Are copyright notices adjacent to images on a Web page "conveyed in connection with copies or phonorecords of [the images] or performances or displays of [the images]" as the statute requires?

6.  Near the beginning of its substantive discussion of CMI, the Kelly court makes the following observation:

    "Section 1202(b)(1) does not apply to this case.  Based on the language and structure of the statute, the Court holds this provision applies only to the removal of copyright management information on a plaintiff's product or original work."

What does this excerpt mean?  Does it mean that the statute protects CMI only on a copyright owner's own reproduction or display of the copyrighted work, and not on a reproduction or display made by someone else, whether or not lawfully?  If so, can it be correct?  If that interpretation were correct, would CMI have any practical value as a means of controlling the lawful use of copyrighted material?

7.  All of the restrictions in subsection (b) of Section 1202 invoke the postamble to subsection (b), which requires the defendant to act "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."  (emphasis added.)  Does the phrase "it will" have an obvious grammatical antecedent?  To what does the pronoun "it" refer?  Does the postamble require a predicate act of copyright infringement (by someone other than the CMI defendant) as a precondition to liability under subsection (b), or is it sufficient if there is a likelihood of copyright infringement?  Does the court resolves this issue?  Does the future indicative mood of the phrase "it will" suggest an answer?

8.  If the postamble to subsection (b) does not require a predicate act of infringement, is the court correct in finding that the defendant here lacks the necessary knowledge or negligence with respect to the likelihood of consequent infringement?  On what specific facts did the court base its finding on that point?

In footnotes 2 and 7 (the court's footnotes 2 and 8), the court discusses a discontinued version of the defendant's service in which, when a user clicked on a thumbnail image, the full size image would appear in one facing page of the defendant's Website, and the full-size page of the originating Website containing the image would appear adjacent.  Would/should the court be more likely to find the necessary knowledge or negligence if the defendant's service still worked that way?  Would such a service push the defendant "over the line" into a violation of subsection (b)?  In deciding whether the conditions of the postamble to subsection (b) are met, should the court focus on the capabilities of the technology, their likely use by an ordinary user, or the defendant's state of mind?  Would a service having these features still be able to claim fair use of the images?

9.  Now consider the defendant's discontinued "vacuuming" service discussed in footnote 6 (court's footnote 7).  What exposure to what liability does that service create?  If the defendant offered that service, would you advise the defendant to modify or discontinue it?

 

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