shrinkwrap license, as such license would convey the “terms and conditions for use of the work,”
which is one of the express components of the definition of CMI.
(i) Cases Requiring CMI to be Part of a Technological
System or Process
a. The IQ Group, Ltd. v. Wiesner Publishing, LLCThe case of The IQ Group, Ltd. v. Wiesner Publishing, LLC^1287 is one of the most
thorough opinions to consider the scope of the definition of CMI, although it and the cases that
follow its reasoning construe what qualifies as protectable CMI under the DMCA quite a bit
more narrowly than the cases discussed in Section II.G.1(b)(1)(ii) below that reject its reasoning
or result. There is thus a significant split in authority over the issue of what qualifies as
protectable CMI.
The plaintiff IQ Group and the defendant Wiesner Publishing were business competitors
who distributed ads by email to insurance agents on behalf of insurance companies. IQ
distributed ads for two insurance companies that contained IQ’s graphic logo. The logo
functioned as a hyperlink in the ads such that, when clicked, it directed the user to a page of IQ’s
website which IQ claimed contained copyright notices. After IQ had distributed the ads for the
two insurance companies, the companies hired Wiesner to distribute the same ads via email.
Wiesner removed IQ’s logo and hyperlink, added new information so that responses to the ads
would go to the insurance companies, and then copied and distributed the ads by email. IQ sued
the two insurance companies and Wiesner for, among other things, violation of the CMI
provisions of the DMCA based on the removal of the logo from the ads. The parties cross
moved for summary judgment.^1288
The court ruled that the IQ’s claim that the logo and hyperlink were within the scope of
Section 1202 failed for two reasons. First, as to the logo, IQ’s position impermissibly blurred the
distinction between trademark law and copyright law. Second, properly interpreted, Section
1202 did not apply to either the logo or the hyperlink.^1289
With respect to the first reason, the court ruled that protecting a logo, functioning as a
service mark, under the CMI provisions would turn the DMCA “into a species of mutant
trademark/copyright law, blurring the boundaries between the law of trademarks and that of
copyright.”^1290 Specifically, the court was concerned that if every removal or alteration of a logo
attached to a copy of a work gave rise to a cause of action under the DMCA, the DMCA would
(^1287) 409 F. Supp. 2d 587 (D.N.J. 2006).
(^1288) Id. at 589-90.
(^1289) Id. at 591-92.
(^1290) Id. at 592.