Advanced Copyright Law on the Internet

information on a plaintiff’s product or original work.”^1340 The court also ruled that even if
Section 1202(b)(1) did apply, the plaintiff had not offered any evidence showing that the
defendant’s actions were intentional, rather than merely an unintended side effect of the
crawler’s operation.^1341 The court found that the more applicable provision was that of Section
1202(b)(3), which prohibits distribution of copies of works knowing that CMI has been removed
or altered without authority of the copyright owner or the law, knowing or having reason to
know that it will induce, enable, facilitate, or conceal an infringement. The court also found no
violation of this section, however, because users who clicked on the thumbnail version of the
images were given a full-sized version, together with the name of the website from which the
image was obtained (and an opportunity to link there), where any associated CMI would be
available.^1342 “Users were also informed on Defendant’s Web site that use restrictions and
copyright limitations may apply to images retrieved by Defendant’s search engine.”^1343 Based
on these facts, the court concluded that the defendant did not have “reasonable grounds to know”
under Section 1202(b)(3) that it would cause its users to infringe the plaintiff’s copyrights:

Plaintiff’s images are vulnerable to copyright infringement because they are

displayed on Web sites. Plaintiff has not shown users of Defendant’s site were

any more likely to infringe his copyrights, any of these users did infringe, or

Defendant should reasonably have expected infringement.^1344

Accordingly, the court concluded that there had been no violation of the DMCA.

b. Thron v. Harper Collins Publishers

In Thron v. Harper Collins Publishers,^1345 the plaintiff alleged that the defendant
misappropriated two of his allegedly copyrighted photographs for use in a book published by the
defendant. The plaintiff further contended that the defendant’s subsequent efforts to publicize
the book through the Internet violated the CMI provisions of the DMCA because the plaintiff
had provided Amazon.com with a digital image of one of the photographs that was allegedly
impermissibly altered to remove certain unspecified information related to the plaintiff’s
copyright registration. The court rejected this claim because the plaintiff’s copyright registration
was itself invalid and because the plaintiff had submitted no competent, admissible evidence to
support any finding that the defendant removed or altered the information intentionally, as
required by the statute.

c. Gordon v. Nextel Communications

(^1340) Id.
(^1341) Id.
(^1342) Id.
(^1343) Id.
(^1344) Id. at 1367.
(^1345) 64 U.S.P.Q.2d 1221 (S.D.N.Y. 2002).