Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Internet Law & StrategyKickerFeaturesTopicsCommercial LawLitigationRegulationTechnology Media and TelecomSectionsNewsLJN Newsletters

Recent Uses of Software and the DMCA

By Richard Raysman and Peter Brown

One of the motivations for enacting the Digital Millennium Copyright Act (DMCA), 17 U.S.C. '1201 et seq., was the acknowledgement by Congress of “the ease with which pirates could copy and distribute a copyrightable work in digital form was overwhelming the capacity of conventional copyright enforcement to find and enjoin unlawfully copied material.” See, Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001). Among the provisions created to redress this rampant infringement were the prohibitions against: 1) removing copyright management information (CMI); and 2) circumventing technological measures in place to prevent infringement. See, 17 U.S.C. ”1202(c), 1201(a). CMI is defined in the DMCA as information communicated with a copyrighted work which identifies the nature of the copyright. In one notable case involving CMI, a news organization was found to have violated the DMCA by knowingly distributing pictures with CMI that included authorship credit attributed to the wrong photographer. These two DMCA prohibitions are included in a broader category of protections afforded copyright holders called digital rights management (DRM), which is an access control technology used to prevent misuse of copyrighted works.

Each is controversial. Anti-circumvention preventions have arguably brought about unintended consequences, including jeopardizing fair use and chilling free expression and scientific research, and CMI has alleged to have been defined so broadly as to include logos, which could theoretically allow a trademark holder to invoke DMCA protections. As another of the many examples, almost 17 years after the passage of the DMCA, there remains a dispute as to whether CMI is only protected if it involves the use of a “digital” technological measure, such as CMI embedded in the software, or whether it is also protected when used in an “analog” measure, such as the author manually affixing the author's name to the work. See also, Murphy v. Millennium Radio Grp., 650 F.3d 295 (3d Cir. 2011) (printed credit on image that is not part of an “automated copyright protection or management system” is CMI). Another source of disagreement is whether a “simple” copyright notice constitutes CMI within the meaning of the DMCA.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Beach Boys Songs Written Decades Ago Triggered Current Quarrel With Lawyers Image

There's current litigation in the ongoing Beach Boys litigation saga. A lawsuit filed in 2019 against Nevada residents Mike Love and his wife Jacquelyne in the U.S. District Court for the District of Nevada that alleges inaccurate payment by the Loves under the retainer agreement and seeks $84.5 million in damages.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

Transfer Tax Implications on Real Property Leases Image

The real property transfer tax does not apply to all leases, and understanding the tax rules of the applicable jurisdiction can allow parties to plan ahead to avoid unnecessary tax liability.