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DMCA Requires Scienter for CMI Violations

Posted by Thomas P. Howard | May 15, 2021 | 0 Comments

By James Juo.

Section 1202 of the Digital Millennium Copyright Act (“DMCA”) prohibits removing or altering copyright management information (“CMI”) that is “conveyed in connection with” creative works. Under the statute, CMI is defined to include information such as the title or other information identifying the copyrighted work, the author, terms and conditions for use of the work, or identifying numbers or symbols referring to such information or links to such information. 17 U.S.C. § 1202(c). Some courts have suggested that CMI also could include metadata of a photograph's electronic image file. Stevens v. Corelogic, Inc., 899 F.3d 666, 675 (9th Cir. 2018).

The remedies for a CMI claim under the DMCA include actual damages or, alternatively, statutory damages between $2,500 to $25,000 per violation. The court also has the discretion to award attorney's' fees under 17 U.S.C. § 1203(b) of the DMCA. Injunctive relief may be available as well.

DMCA Section 1202(b), however, also requires that the defendants intentionally removed or altered the alleged CMI, and had knowledge, or reason to know, that it would induce, enable, facilitate or conceal copyright infringement. Corelogic, 899 F.3d at 673; Fischer, 968 F.3d at 223 (“a litigant must show (1) the existence of CMI on the allegedly infringed work, (2) the removal or alteration of that information and (3) that the removal was intentional”); Powers v. Caroline's Treasures Inc., No. CV-17-03923-PHX-SMB, 2019 WL 1557544, at *4 (D. Ariz. Apr. 10, 2019) (noting DMCA Section 1202 “also has a ‘knowing' or ‘intent' requirement for a defendant to be liable”). “At the pleading stage, the claimant must plead facts plausibly showing that the alleged infringer had this required mental state.” Free Speech Systems, LLC, v. Menzel, No. 19-CV-00711-WHO, 2019 WL 2515579, at *8 (N.D. Cal. Jun. 18, 2019); Chevrestt v. Am. Media, Inc., 204 F. Supp. 3d 629, 632 (S.D.N.Y. 2016) (dismissing complaint containing no factual allegations supporting an inference that alteration of CMI was done intentionally).

This scienter or mental-state requirement to “induce, enable, facilitate or conceal” copyright infringement “is intended to limit liability in some fashion—specifically, to instances in which the defendant knows or has a reasonable basis to know that the removal or alteration of CMI or the distribution of works with CMI removed will aid infringement.” Corelogic, 899 F.3d at 674–5; see also Faulkner Press, LLC v. Class Notes, LLC, 756 F. Supp. 2d 1352, 1360 (N.D. Fla. 2010) (“no evidence to show that [defendant] altered the [CMI] with intent to aid infringement”).

The Second Circuit recently held that “a defendant's awareness that distributing copyrighted material without proper attribution of CMI will conceal his own infringing conduct satisfies the DMCA's second scienter requirement.” Mango v. BuzzFeed, Inc., 970 F.3d 167, 172 (2d Cir. 2020) (emphasis in original). The Court noted that Corelogic “did not address whether a defendant's own infringement satisfies Section 1202(b)(3)'s second scienter requirement” because the plaintiffs in that case could not show infringement by the defendants, so “they instead attempted to prove that the alleged removal of CMI in the form of photo metadata increased the risk of downstream infringement by others.” Mango, 970 F.3d at 173–74.

Section 1202 was drafted specifically to limit liability to actors who know or have reason to know that their acts “will induce, enable, facilitate or conceal” copyright infringement. Corelogic, 899 F.3d at 674. (“the import of the ‘induce[d], enable[d], facilitate[d], or conceal[ed]' prong is supported by the legislative history of Section 1202”).

In short, to satisfy the knowledge requirement, a plaintiff bringing a Section 1202(b)(1) claim must offer more than a bare assertion that ‘when CMI metadata is removed, copyright infringement plaintiffs . . . lose an important method of identifying a photo as infringing.' Instead, the plaintiff must provide evidence from which one can infer that future infringement is likely, albeit not certain, to occur as a result of the removal or alteration of CMI.

Corelogic, 899 F.3d at 675.

A plaintiff could satisfy the knowledge requirement for a CMI claim under Section 1202 of the DMCA by demonstrating a past “pattern of conduct” or “modus operandi” of the defendant to establish awareness of the probable future impact of its actions. Corelogic, 899 F.3d at 674.

The copyright attorneys at Thomas P. Howard, LLC can evaluate anti-circumvention issues with respect to copyright management information.

About the Author

Thomas P. Howard

Thomas Howard is an experienced trial lawyer that handles intellectual property litigation nationwide, including copyright, trademark, trade secret and patent litigation, as well as complex civil litigation, including breach of contract, interference with contract, breach of fiduciary duty, conspiracy, fraud and fraudulent transfer of assets.


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