Advanced Copyright Law on the Internet

In Keogh v. Big Lots Corp.,^1363 the court ruled that the prohibition of Section 1202(b)(3)
of the DMCA against distributing works knowing that CMI has been removed or altered without
authority of the copyright owner requires actual knowledge that CMI has been removed.
Constructive knowledge of removal of CMI is not sufficient. Once CMI is removed from a
work, however, the defendant is required to have only “reasonable grounds to know” (a
constructive knowledge standard) that its actions would induce, enable, facilitate, or conceal an
infringement of any right under the DMCA. Because the plaintiff had not alleged that the
defendant had actual knowledge that CMI had been removed from imported birdhouses having
designs that allegedly infringed the plaintiff’s birdhouses, the court granted the defendant’s
motion to dismiss the CMI claim under Rule 12(b)(6).^1364

f. Goldman v. Healthcare Management Systems

In Goldman v. Healthcare Management Systems,^1365 the plaintiff alleged that the
defendant had been infringing upon the its copyright in a computer program since the plaintiff
downloaded the program onto the defendant’s computer, and that the defendant had violated the
CMI provisions of the DMCA by knowingly removing the plaintiff’s CMI (apparently in the
form of a copyright notice). The court denied the plaintiff’s motion for summary judgment,
finding numerous disputed facts, including whether the appropriate copyright notices were on the
original materials given to the defendant.^1366

g. Thomas M Gilbert Architects v. Accent Builders

In Thomas M. Gilbert Architects, P.C. v. Accent Builders & Developers, LLC,^1367 the
court granted summary judgment in favor of the defendant on a claim under Section 1202(b) for
removal of a copyright notice from the plaintiff’s architectural plans. The court found no
evidence to show that the defendant intentionally removed the notice, or that he had reason to
know that its removal would induce, enable, facilitate, or conceal infringement. The defendant
testified that he was unfamiliar with copyright law and did not recall seeing the copyright notice
when he modified the plaintiff’s plans. Accordingly, because the plaintiff had made no showing
of the required intent, the court granted summary judgment in the defendant’s favor.^1368

h. Banxcorp v. Costco

In Banxcorp v. Costco Wholesale Corp.,^1369 the plaintiff published market research
performance indices based on selected banking, mortgage and loan data that were used as

(^1363) 2006 WL 1129375 (M. D. Tenn. Apr. 27, 2006).
(^1364) Id. at 2.
(^1365) 2006 U.S. Dist. LEXIS 89009 (W.D. Mich. Dec. 8, 2006).
(^1366) Id. at 3-4.
(^1367) 629 F. Supp. 2d 526 (E.D. Va. 2008).
(^1368) Id. at 537.
(^1369) 723 F. Supp. 2d 596 (S.D.N.Y. 2010).