Company cannot avoid DMCA liability for false CMI by claiming it used its own name

Plaintiff sued defendant claiming defendant violated the DMCA by providing and distributing false copyright management information (“CMI”), in violation of 17 U.S.C. § 1202(a)(1)–(2). Defendant had placed its brand name and logo on and adjacent to plaintiff’s photo within defendant’s advertising material. 

The part the DMCA relevant to this case provides that “[n]o person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement — (1) provide copyright management information that is false, or (2) distribute or import for distribution copyright management information that is false.”

Section 1202(c) defines CMI as “any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work: …” (emphasis added). It goes on to list eight types of CMI, as relevant in this case: (2) the name of, and other identifying information about, the author of the work; (3) the name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright; and (7) identifying numbers or symbols referring to such information or links to such information.

Defendant moved to dismiss, arguing that the plain language of § 1202(c) excepts from the definition of CMI “any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work.” It reasoned that because plaintiff’s complaint defined defendant as a “user” of the photograph (i.e., by alleging that defendant used the photograph for commercial promotion) and because personally identifiable information includes names, the name of a user of a work is not, and cannot, be CMI.

The court rejected this argument and denied the motion to dismiss. It looked to the decision of another federal court, Tiermy v. Moschino S.P.A., No. 15-CV-5900, 2016 WL 4942033 (C.D. Cal. Jan. 13, 2016) in which a defendant had made a similar argument. As that court noted, defendant’s argument fell short on a logical basis. Taking defendant’s theory to the extreme, virtually any person who took another’s work and placed their name or brand on it could be considered a “user of a work” rather than an infringer, and escape liability. The court found that was not the intent of the statute, which is to protect the integrity of CMI by prohibiting the provision of false CMI. The court held that it cannot be, and defendant provided no authority in support, that an alleged infringer can escape liability under § 1202(a) simply because the false CMI put forth is the alleged infringer’s own name.

Roth v. The Walsh Co., 2019 WL 318404 (E.D. Wis. Jan. 24, 2019)