The information in the files that the plaintiff claimed constituted CMI were the author’s
name, a title, a reference to the license and where to find the license, a copyright notice, and the
copyright owner. The plaintiff alleged that he used a software script to automate adding
copyright notices and information regarding the license and uploaded the files on the Internet
through Source-Forge.net, and that the defendants downloaded the files and removed the names
of the authors and copyright holder, title, reference to the license, where to find the license and
the copyright notices, and instead, renamed the files and referred to their own copyright notice
and named themselves as author and copyright owner. The court denied the motion to dismiss.
It cited the IQ Group case’s holding that the statute should be construed to protect CMI
performed by the technology measures of automated systems, but found that the complaint
alleged there had been some technological process engaged to protect the information inserted
into the files. Thus, absent further discovery, the court found it inappropriate to dismiss the CMI
claim.^1307
In a subsequent opinion ruling on cross motions for summary judgment, the court, citing
the IQ Group and McClatchey decisions, ruled that the DMCA protects only “CMI performed by
the technological measures of automated systems.”^1308 The court found, based on the allegations
in the complaint, that there had been some technological process employed to protect the
attribution information in the Decoder Definition Text Files. Further, there was no dispute that
the defendants had employed a tool to translate the JMRI files to a format for their own use
without copying this attribution information. Accordingly, the court granted summary judgment
to the plaintiff that the attribution information constituted CMI protected by the DMCA.
However because there remained disputed issues of fact regarding the defendants’ knowledge
and intent, the court denied the plaintiff’s motion for summary judgment on liability under the
CMI provisions of the DMCA.^1309
d. Silver v. LavadeiraThe plaintiff published certain news reports on her web site and placed her name within
the reports. The plaintiff alleged that the defendant copied certain information from her reports
and violated Section 1202 by omitting her name from the copied material. The court ruled,
based on IQ Group, that CMI is limited to components of technological measures functioning as
automated systems, and that the plaintiff’s name did not constitute CMI because she had not
alleged that an automated technological system was responsible for the inclusion of her name in
the news reports.^1310
(^1307) Id. at 934.
(^1308) Jacobsen v. Katzer, 2009 U.S. Dist. LEXIS 115204 at 20 (N.D. Cal. Dec. 10, 2009).
(^1309) Id. at 21.
(^1310) Report and Recommendation, Silver v. Lavandeira, No. 08 Civ. 6522 (JSR) (DF) at pp. 2-3 (S.D.N.Y. Jan. 7,
2009) (recommendation of magistrate judge), adopted in its entirety by the district court in Silver v. Lavandeira,
2009 U.S. Dist. LEXIS 15491 at *3 (S.D.N.Y. Feb. 26, 2009).