benchmarks to measure the rates and performance of the U.S. banking and mortgage markets.
Costco entered into an agreement with the defendant Capital One Financial Corp. to provide a
co-branded direct banking service. The plaintiff and Capital One entered into a license
agreement permitting Capital One to access and use the indices and the data contained therein.
The plaintiff alleged that Capital One breached the license agreement by redistributing the
indices to Costco in order to benefit the co-branded banking services. The plaintiff asserted a
DMCA claim based on allegations that when the defendants copied the indices they altered or
removed the CMI that the plaintiff had associated with the data.^1370 Specifically, the plaintiff
had associated MCI with the indices that read: “(C) [year of publication] BanxCorp. All Rights
Reserved.” The plaintiff included in its complaint an example of an ad the defendants ran in
conjunction with the indices that included the following differing CMI: “National Average of
[Annual Percentage Yields] for money market accounts as published by BanxQuote.com as of
5/22/07.”^1371
The court held that these allegations were sufficient to survive a motion to dismiss the
plaintiff’s CMI claim. “At summary judgment, Defendants will have an opportunity to present
evidence that the placement of the CMI either indicated that it did not refer to the BanxQuote
Indices, or was sufficiently removed to demonstrate that Defendants lacked the intent required to
show a violation of the DMCA. However, the Court declines to hold that, as a matter of law,
CMI must be placed on the actual information on a website in order to state a claim under the
DMCA.”^1372
i. Agence France Presse v. MorelThe facts of this case are set forth in Section II.G.1(b)(1)(ii) above. In ruling on the
motion of Agence France Presse (AFP) to dismiss the claim against it for removal of CMI, AFP
argued that CMI must be removed from the photograph itself to state a claim for removal or
alteration of CMI. The court rejected this argument, noting that the DMCA defines CMI as
information “conveyed in connection with copies” and so does not require the CMI to appear on
the work itself. The court found it implausible that a viewer of Morel’s photos would not
understand the designations “Morel” and “by photomorel” appearing next to the images to refer
to his authorship. While the location of CMI could go to AFP’s intent, that fact issue could not
be resolved on a motion to dismiss. As to intent and knowledge of infringement, Morel had
alleged that AFP, CNN, and CBS representatives contacted him about his photos, copied them
without his permission, and distributed them with altered CMI. He also alleged that, in disregard
of the credit change instruction, Getty continued to distribute photos crediting Suero or AFP as
photographer. The court concluded that these allegations were sufficient to survive a motion to
dismiss.^1373
(^1370) Id. at 599-600.
(^1371) Id. at 610.
(^1372) Id. at 610-11.
(^1373) Agence France Presse v. Morel, 769 F. Supp. 2d 295, 305-06 (S.D.N.Y. 2011).