Copyright: Some Very Recent Cases You Should Know About

Unless they were decided by the Supreme Court, contained major players, or were widely anticipated to begin with, most copyright cases do not get a lot of press. Here are six somewhat below-the-radar decisions from the past two months that will be of real consequence in the copyright world.

Murphy v. Millennium Radio Group, 2011 WL 2315128 (3d Cir. June 14, 2011): Copyright Management Information Includes Simple Non-Digital Copyright Credits

While the bundle of rights offered by copyright law includes a lot of things, it does not include the right to "credit." However, in Murphy, the Third Circuit found that the removal of a credit, digital or not, from any copyrighted work may be a violation of the Digital Millennium Copyright Act's ("DMCA") prohibition on tampering with "Copyright Management Information" ("CMI").

Here, plaintiff took a photo of two shock-jocks for a local magazine's "Best of" edition. The humorous photograph portrayed the two DJs, naked, with their private areas covered only by a sign proclaiming the name of their radio station-making this perhaps the one case where CMI could be confused with "TMI" (insert your own joke here). The radio station then used the photograph in a contest where its listeners altered the photo in other amusing ways. In administering the contest, the station also removed the photographer's name from the bottom of the photo.

The district court dismissed a copyright infringement claim based on fair-use grounds, and also dismissed the plaintiff's CMI claim. The Third Circuit reversed. While the fair-use reversal was interesting, it did not create new law. But, there have been few cases even mentioning CMI, and just about all of those at the district court level. Those courts that found no CMI violation reasoned that: (a) the removal of mere credits, especially non-digital credits, cannot be a violation of the DMCA because the DMCA was intended to safeguard technological measures used to protect copyrighted works; and, (b) finding a CMI violation for simple credit removal would go against the bar on copyright credit claims and potentially blur the lines of copyright and trademark.

The Third Circuit, however, held that the clear language of the DMCA (17 U.S.C. § 1202) had no such limitations in the actual definition of CMI, and so it could include any form of credit. Like MDY Indus., LLC v. Blizzard Entertainment, Inc., 2010 WL 5141269 (9th Cir. Dec. 14, 2010), in the Ninth Circuit, which interpreted the DMCA's "access" right, this may be a case where the court correctly read the literal interpretation of the DMCA, even if that interpretation might contrast with the original intent of the law. Such a finding may cast a wide net for potential DMCA violations, so look for a substantial rise in "removal of credit" claims going forward. However, note that a CMI violation is an additional claim, not a substitute for a copyright claim, since it still has to "induce, enable, facilitate, or conceal" an infringement.

Kernal Records Oy v. Mosley, 2011 WL 2223422 (S.D. Fla. June 7, 2011): First Publication on the Internet Means First Publication Everywhere

Yes, you read the header correctly. In Kernal, plaintiff's copyright predecessor (who was from Norway) first published his song on an Australian magazine website. Plaintiff sued the U.S.-based defendants in the United States after they allegedly copied the work without authorization. Once the court decided that the initial online posting was a publication, the main issue was where the work was first published. Under section 411 of the Copyright Act, "United States works" must be registered with the U.S. Copyright Office before a lawsuit can be brought, but foreign works are immune from that requirement. So, what country did plaintiff's work belong to according to the court? Every country.

The court held that first publication over the Internet amounts to "simultaneous publication in the United States and other nations around the world that have Internet service." Therefore, such works are subject to the procedural requirements of each and every country. Kernal rejected the holding and rationale of the only other court to delve deeply into this issue, Moberg v. 33T LLC, 666 F. Supp.2d 415 (D. Del. 2009), whose concerned included subjecting copyright holders to the formalities of every country, allowing U.S. residents to infringe on otherwise foreign works with minimal recourse, and being contrary to the goals of the Berne Convention-the treaty the United...