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 CMIif usedany 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 instructionsor
links to instructionsthat "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 lawfullyand 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 technologya search engine
for imageswhose 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
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
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
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