Finally, section 1201 prohibits the manufacture or trafficking in devices or technology designed to circumvent the protection of a copyright owner’s rights. Violations of these provisions can result in civil actions under section 1203 or criminal prosecution under section 1204, discussed below.III. 17 U.S.C. § 1202: Integrity of Copyright Management InformationUnlike Section 1201’s focus on copyright protection systems, section 1202 focuses on copyright management information. This section prohibits knowingly falsifying, removing, or altering copyright management information.

w that the initial lawsuits involving these technologies have been filed, these issues may be addressed by the courts for the first time.The Cases BeginGitHub Copilot Lawsuit (Complaint) The first case to be filed involving generative AI is a class-action lawsuit filed in November against GitHub, Microsoft, and OpenAI, involving GitHub’s Copilot tool. Copilot is an AI-powered tool that suggests new lines of code in real time based on what a programmer has already written. This case does not raise any copyright infringement claims, but instead focuses mostly on breach of contract and privacy-related claims.The plaintiffs allege that Copilot copies code from publicly available software repositories on GitHub without meeting the requirements of the open-source licenses applicable to such code (e.g., by failing to provide attribution, copyright notices, and a copy of the license terms, and by not making Copilot itself open source). The Complaint includes other claims, such as violation of 17 U.S.C. § 1202 for the alleged removal of copyright management information (CMI), claims relating to GitHub’s handling of “personal data” and “personal information,” a claim of wrongful interference with the plaintiff’s business interests and expectations, and claims of fraud, false designation of origin, unjust enrichment, and unfair competition.Andersen et al. v.Stability AI Ltd.et al (Complaint) In January, the same legal team that filed the Copilot lawsuit filed another class-action lawsuit relating to three image generation tools: Stable Diffusion (developed by Stability AI), Midjourney (developed by Midjourney), and DreamUp (developed by DeviantArt). These AI-powered tools produce images in response to text inputs from users. The plaintiffs claim that the models powering these tools were trained using copyrighted images (including those owned by the plaintiffs), which they allege were scraped from the internet. They describe this technology as “merely a complex collage tool,” and claim the tra

Interpreting a provision of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1202(b), for the first time, the US Court of Appeals for the Eleventh Circuit affirmed a summary judgment ruling that the plaintiff failed to satisfy the second scienter requirement of § 1202(b) by not showing that the defendant knew, or had reasonable grounds to know, that its actions would induce, enable, facilitate or conceal a copyright claim. Victor Elias Photography, LLC v. Ice Portal, Inc., Case No. 21-11892 (11th Cir. Aug. 12, 2022) (Newsom, Marcus, JJ; Covington, Distr. J.)Victor Elias is a professional photographer who takes photographs for hotels and resorts throughout the United States, Mexico and the Caribbean. Between 2013 and 2017, Elias took pictures for Starwood Hotels & Resorts and Wyndham Hotel & Resorts.

he court agreed with this theory, advanced in plaintiffs’ opposition to the motion to dismiss, but noted that “use” was not actually alleged in the complaint. Rather, the complaint focused on reproduction and the preparation of derivative works, which are exclusive rights under the Copyright Act, and therefore preempted. The court dismissed the unjust enrichment claim with leave to amend.The key takeaway here is that allegations of improper use of software should be able to survive a preemption challenge, at least in California.Removal or Alteration of Copyright Management Information Under the DMCA, the removal or alteration of copyright management information (CMI) is unlawful, as is distributing works knowing CMI has been removed if one has reasonable grounds to know it will induce infringement. CMI includes, as is the case in this matter, the identity of the copyright owner, the terms and conditions for use of a work, and other information that may be found in a copyright notice. (17 USC §1202(b)).The plaintiffs alleged that their code included CMI that the defendants removed or altered, and distributed despite having reasonable grounds to know that such actions would induce infringement. The defendants countered that “removal” of CMI requires an affirmative act and that the complaint merely alleged “passive non-inclusion of CMI.” The court rejected this semantic distinction, and noted that the plaintiffs had properly alleged that the defendants were aware of the presence of CMI and had trained their programs to ignore it or remove it.The defendants also argued that the developers had failed to sufficiently plead scienter (i.e., that the defendants had knowledge that their actions would induce infringement). The court acknowledged that, although the “universal possibility” that an action might cause infringement is not sufficient, at the pleading stage, mental state does not need to be alleged with specificity.Here, the court found that the plaintiffs had alleged that defendan

The digital photographs would contain metadata, which although invisible to the average user, contained information that could help identify the author of the photograph as well as potential copyright ownership information. Copyright law, specifically 17 U.S.C. § 1202(b) ,restricts “the removal or alteration of copyright management information (“CMI”) – information,” such as the title, the author, the copyright owner and other identifying information, from a copyrighted work. CoreLogic develops and provides software to the real estate industry, primarily multiple listing services also known as MLSs.

In May 2016, Zuma discovered its sports images were available for license on Getty's website and requested they be taken down. Although Getty complied with multiple Zuma requests, on August 1, 2016, Zuma sued Getty for copyright infringement and unauthorized licensing of its sports images, as well as claims under Section 1202(b) of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1202, for allegedly removing Zuma's copyright management information (CMI) from each image and replacing it with a watermark that read "Getty Images." The original complaint also included Lanham Act unfair competition claims and related New York state law claims, though these claims were dismissed in 2017 when the court partially granted Getty's motion to dismiss.

INTRODUCTIONViral DRM is a content creator specializing in weather videos. Their content is attractive to many people who love to watch storm and weather videos. Recently, Viral DRM has been on a rampage filing lawsuits in California (where YouTube is located), and suing people from the United States and abroad. Their complaints typically allege copyright infringement by using their videos without a license. They may also be alleging a violation of the 17 U.S.C. 1202 for removing or providing false copyright management information. Here is a look at the cases filed in February, 2024.THE POTENTIAL PROBLEM OF FILING A COUNTER-NOTICEFor out-of-country Defendants, when a company issues a takedown against a video on your YouTube channel, you have a tough decision to make. First, you can file a counter-notification (or Counter-notice) and challenge the takedown, for example, say you have a license or believe you have fair use rights. However, when you file a counter notice, you have to agree to jurisdiction in California where YouTube is heardquarted. This means, if you are a Defendant in China, India, or Europe, you are consenting to jurisdiction in California and you can be hauled into the Northern District Court in Northern California. Before anyone ever files a counternotification, they should consult with a copyright lawyer to see where they stand. Do you really have fair use rights? Should you just let the video be taken down and move on, a

end of the video5. Don't forget full attribution at the end of your video6. Try not to use more than one of the third party's clips7. Keep in mind you want to TRANSFORM the original (give new meaning or purpose to the content than the original did)8. Do not disparage9. Parody is a great way to get fair use (but you MUST make fun of the original)10. Fair use opinions can help you (innocent infringement defense)11. Be aware of the BIG BRANDS (ESPN, Disney, Universal, Recording Industry, etc.)12. Document your fair use analysis (innocent infringement)13. Check case law in your jurisdiction (courts can differ)ANOTHER IMPORTANT POINT - REMOVING COPYRIGHT MANAGEMENT INFORMATION ("CMI")Sometimes, I have a client tell me that they removed a watermark or cropped out the copyright symbol and authors information before posing the photo, image or video clip on their website. This is not a good idea. Even if your final piece qualifies for fair use, you may have a separate problem under 17 U.S.C. 1202 for removing copyright management information. So, what exactly is the definition for "copyright management information?"POTENTIAL PENALTIES FOR A 1202 VIOLATIONA defendant in a copyright 1202 case can face the following damages and penalties:(a) Civil Actions.— Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.(b) Powers of the Court.—In an action brought under subsection (a), the court—(1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution;(2) at any time while an action is pending, may order the impounding, on such terms as it deems reasonable, of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in

In this situation, it is the act of circumvention that is prohibited, regardless of whether the copyright material is obtained.Second, the DMCA prohibits the use of copyright material in which any copyright management information (CMI) has been removed, altered, or to which false CMI has been added. 17 U.S.C. § 1202. CMI is defined as:The title and other information identifying the work, including the information set forth on a copyright notice;The name of, and other identifying information about, the author of a work;The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright;With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work;With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work;Terms and conditions for use of the work;Identifying numbers or symbols referring to such information or links to such information.

In this situation, it is the act of circumvention that is prohibited, regardless of whether the copyright material is obtained.Second, the DMCA prohibits the use of copyright material in which any copyright management information (CMI) has been removed, altered, or to which false CMI has been added. 17 U.S.C. § 1202. CMI is defined as:The title and other information identifying the work, including the information set forth on a copyright notice;The name of, and other identifying information about, the author of a work;The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright;With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work;With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work;Terms and conditions for use of the work;Identifying numbers or symbols referring to such information or links to such information.