the draft provision.^1296 Sections 1201 and 1202 underwent no significant revision between
drafting in 1995 and enactment in 1998.^1297
The court noted that this interpretation of Section 1202 made sense because it fit Section
1201 with Section 1202, and with chapter 12 of the DMCA as a whole. “Chapter 12, as a whole,
appears to protect automated systems which protect and manage copyrights. The systems
themselves are protected by § 1201 and the copyright information used in the functioning of the
systems is protect in § 1202. ... Section 1202 operates to protect copyright by protecting a key
component of some of these technological measures. It should not be construed to cover
copyright management performed by people, which is covered by the Copyright Act, as it
preceded the DMCA; it should be construed to protect copyright management performed by the
technological measures of automated systems.”^1298
In sum, the court ruled that “[t]o come within § 1202, the information removed must
function as a component of an automated copyright protection or management system.”^1299 The
court found no evidence that IQ intended that an automated system would use its logo or
hyperlink to manage copyrights, nor that the logo or hyperlink performed such a function.
Accordingly, the logo and hyperlink did not fall within the definition of CMI, and the court
granted summary judgment for Wiesner on IQ’s CMI claim.^1300
b. Textile Secrets Int’l, Inc. v. Ya-Ya Brand Inc.In this case, the plaintiff alleged that fabrics sold by the defendants infringed the
plaintiff’s copyright in its “FEATHERS” fabric design. The plaintiff also alleged that the
defendants had violated the CMI provisions of the DMCA by removing the plaintiff’s name and
the copyright symbol from the selvage (the edge or border of fabric that is intended to be cut off
and discarded) of its fabrics, as well as an attached tag stating that the design was a registered
work of the plaintiff, and then making copies of the fabrics. The central issue in the case was
whether the information on the selvage and the tag constituted CMI.^1301
The defendants urged that, in view of the legislative history of the DMCA, the CMI
provisions should be construed to apply only to transactions on the Internet or in the electronic
marketplace. The plaintiff argued that a plain reading of the CMI provisions should lead to a
conclusion that CMI can be protected on all types of works, in both digital and non-digital
form.^1302 After an extensive survey of the history of the CMI provisions of the DMCA,
(^1296) Id. at 595.
(^1297) Id. Although the Senate Report stated that CMI need not be in digital form, the court noted that the Senate
Report gave only a vague idea as to what CMI was intended to be, and there was nothing in it to suggest that the
Senate Committee understood Section 1202 differently from the Working Group. Id. at 596.
(^1298) Id. at 597.
(^1299) Id.
(^1300) Id. at 597-98.
(^1301) Textile Secrets Int’l, Inc. v. Ya-Ya Brand Inc., 524 F. Supp. 2d 1184, 1192-93 (C.D. Cal. 2007).
(^1302) Id. at 1193-94.