The Digital Millennium Copyright Act (DMCA) is a complex and controversial law that has many different provisions. Some, such as the Anti-Circumvention and the Notice and Takedown provisions, have taken the spotlight while others have remained relatively unknown.
One such provision makes an appearance on page six of the DMCA. Buried in the anti-circumvention language is a very interesting provision regarding the removal of or providing false Copyright Management Information (CMI), which the law defines as "identifying information about the work, the author, the copyright owner, and in certain cases, the performer, writer or director of the work, as well as the terms and conditions for use of the work, and such other information as the Register of Copyrights may prescribe by regulation."
In short, according to the provision, which is also known as section 1202, it is illegal to remove copyright information affixed to a work or to provide false information before distributing it to others.
In even simpler terms, plagiarism, already a violation of copyright law, is illegal in yet another way.
However, as simple as it may seem, there are many finer points to this law that need to be discussed. For, while we definitely have a new weapon to use against plagiarists, there are nuances to the law that might make applying it very difficult.
The Devil is in the Details
However, before a modification to a CMI element can be considered an infringement, there are several elements that must be in place.
First, the modification must show intent to "induce, enable, facilitate, or conceal infringement." As any lawyer will tell you, intent can be very difficult to prove. If the information was removed by accident, the work arrived to them without any such information or they felt they had to the right to remove or modify the information, it is not infringement.
The exception to this would be, of course, if they deliberately applied false CMI to the work, as one would do when plagiarizing. That would be an different kind of section 1202 violation.
Second, as was highlighted in the case Kelley v. Arriba Soft Corp., the CMI must be affixed to the copyrighted work. With a written work, assumedly, that would simply be a matter of appending the body with a copyright notice. However, with visual or audio pieces, the copyright information must be built into the work itself, either through a watermark, meta data, steganography or some other means of marking the file itself.
As the case found, removing a work from a surrounding copyright notice does not constitute an infringement of CMI. Though a copyright notice on the page would protect the page itself, it does not protect the images contained on it. On the other hand, deliberately cropping an image to remove a watermark or changing a files meta data would be much more likely to constitute a violation of section 1202.
Third, the removal or the modification of the CMI data is only illegal if it is done prior to sending the work onto another party. If the copyright information is modified, removed or falsified, but never passed on, it doesn’t qualify as a section 1202 violation. Much like the "Do Not Remove" tags on mattresses, they are perfectly legal to remove if you are the end user and the work will never be passed on.
Finally, while section 1202 makes it is a violation to modify or remove information identifying the copyright holder, information regarding the user is deliberately omitted from these restrictions. If you have a work that is licensed to specific individuals, such as an Ebook, and the user modifies the license so that it applies to another person or removes the information altogether, it is not a violation of section 1202. It may, however, be a violation of copyright law if it involved making an unauthorized copy.
Despite these details, with a few precautions, section 1202 can provide both some very powerful weapons for dealing with plagiarism and, in the event of a legal dispute, another weapon to bring to the fight.
Breaking it Down
What all of this means to copyright holders is that, if one takes reasonable precautions to affix CMI to their work and that information is intentionally removed, modified or falsified by anyone intending to redistribute it, it is likely a violation of section 1202 and is actionable under the law.
Most likely this would only come up in an actual lawsuit and, even then, only be attached to a standard copyright infringement suit. However, in providing an attorney something else to file suit for, it increases the chance of success and offers the chances to collect significantly more damages that would be attained by copyright infringement alone.
It also, theoretically, adds teeth to lawsuits that might have been weaker, including cases where the work was loosely licensed or of little financial value.
However, in day-to-day plagiarism fighting, odds are this section will not be of much use. While it might be something else to include with your stock cease and desist letter or, possibly, add leverage for DMCA notices, the copyright infringement element of such cases will, generally, continue to take center stage. Copyright law itself is much better tested and it was is designed to be protected by the DMCA.
Still, it’s worth taking some time to take a look at your CMI strategy. Affixing watermarks to images or embedding meta data in music files now not only makes good preventative sense, but also good legal sense. Should a case go to court, you’ll want to have every possible weapon on your side and CMI is something that’s easy and free to add.
Some Interesting Applications
It’s important to note that, while CMI can refer to a copyright notice, it is not limited to that. Anything that provides information about the owner, creator or license of a work is considered CMI, no matter the format it comes in.
First and foremost, a Numly Number is a natural extension of CMI. ESNs provide precisely the kind of information that the law describes and does so in a less intrusive manner. They can also be embedded in any file type and take up significantly less space than manually providing all of the data that is provided.
Also, since licensing information is covered under CMI, a Creative Commons License, if affixed to the actual work, could also qualify. Such a task can be easily done using Creative Commons own Publisher and only takes a few seconds to complete.
However, when it comes to CMI, the sky really is the limit. Comments in source code, signatures on paintings and footers on feeds can all receive protection if they play an appropriate role.
In the end, even though the CMI clause was designed to help in preventing DRM circumvention, it could wind up being very useful for smaller copyright holders, including those that use no DRM at all. It is a powerful weapon for when push comes to shove and it is worth having a CMI strategy in place even though it might not play a major role in your day-to-day plagiarism fighting.
Few things in copyright matters require so little but offer so much potential. It’s important to jump on the things that do.