Advanced Copyright Law on the Internet

Third Circuit reversed. The Third Circuit noted that the statute imposes no explicit requirement
that CMI be part of an automated copyright protection or management system, and rejected the
defendants’ argument that Section 1202’s prohibition on removal of CMI must be interpreted in
conjunction with Section 1201’s focus on technological measures:

[T]o all appearances, § 1201 and § 1202 establish independent causes of action

which arise from different conduct on the part of defendants, albeit with similar

civil remedies and criminal penalties. It may strike some as more intellectually

harmonious to interpret the prohibition of removal of CMI in § 1202 as restricted

to the context of § 1201, but nothing in the text of § 1201 actually dictates that it

should be taken to limit the meaning of “copyright management information.”^1330

Turning to the legislative history of the DMCA, the court found that, while it is possible
to read the legislative history to support an interpretation of CMI as limited to a component of an
automated copyright protection or management system, that history did not provide an
extraordinary showing of contrary intentions on the part of Congress that would justify rejecting
a straightforward reading of the statutory language. The court there ruled that CMI is not
restricted to the context of automated copyright protection or management systems.^1331 “Rather,
a cause of action under § 1202 of the DMCA potentially lies whenever the types of information
listed in § 1202(c)(1)-(8) and ‘conveyed in connection with copies .. of a work ... including in
digital form’ is falsified or removed, regardless of the form in which that information is
conveyed.”^1332 Accordingly, the Third Circuit vacated the district court’s grant of summary
judgment in favor of the defendants on the CMI claim.^1333

g. William Wade Waller Co. v. Nexstar Broadcasting

This case involved the question whether a watermark logo in the bottom right hand
corner of a photo identifying the copyright owner’s web site constituted CMI. The court ruled
that, although it was inclined to agree with a broad reading of what may constitute CMI, it did
not need to decide the issue because there was no evidence that the defendants had removed the
watermark when they posted the plaintiff’s photos on their web site.^1334

(2) Prohibitions on False CMI and Removal/Alteration of CMI

Section 1202(a) prohibits any person from knowingly providing CMI that is false or
distributing or importing for public distribution CMI that is false, with the intent to induce,
enable, facilitate, or conceal infringement. Section 1202(b) prohibits any person from
intentionally removing or altering any CMI, distributing or importing for distribution CMI

(^1330) 650 F.3d at 303.
(^1331) Id. at 305.
(^1332) Id.
(^1333) Id. at 310.
(^1334) William Wade Waller Co. v. Nexstar Broadcasting, Inc., 2011 U.S. Dist. LEXIS 72803 at 2, 10-11 (E.D. Ark.
July 6, 2011).