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Removal of Photo Credit Qualifies As DMCA Violation

Posted by timothy on from the ripping-off-labels dept.

mattgoldey writes with this excerpt: "A federal appeals court in Philadelphia has reinstated a photographer's copyright lawsuit against a New Jersey radio station owner, after finding that a lower court came to the wrong decision on every issue in the case. Most significantly, the appeals court said that a photo credit printed in the gutter of a magazine qualifies as copyright management information (CMI) under the Digital Millennium Copyright Act (DMCA). The DMCA prohibits the unauthorized removal of encryption technology or copyright management information from copyrighted works."

17 of 71 comments (clear)

  1. Karma's a bitch by Caerdwyn · · Score: 5, Insightful

    We can all argue about what fair use of copyrighted materials should be, but I think we can also more-or-less agree that deliberately stripping off a creator's name is uncool. Of course, the conduct of the defendants in question (RTFA, they were shock-jock DJs who responded to the photographer's cease-and-desist with a smear campaign chock full o' slander and libel and just-plain-lies) probably made it a lot easier for the judge to apply the bitch-slap to 'em. They deserved it.

    --
    Everybody gets what the majority deserves.
    1. Re:Karma's a bitch by Caerdwyn · · Score: 5, Informative

      You need to realize that the state of mind of the defendant is often the entire point of a case and is the difference between "guilty" and "innocent" (the fancy Latin term is mens rea ). So if you act like a dick in court or in the actions surrounding the allegation, you may, in FACT, be convicting yourself by demonstrating your state of mind. The shock jocks demonstrated by their actions just what their state of mind was: malicious, reckless, and unrepentant. From a very real, legally defensible, well-established principle, their may well have pushed the likelihood of their guilt from "not enough proof" to "sufficient proof".

      In other words, yes, they got a fair trail, because their behavior demonstrated the facts of the case. If someone is unlikeable, acts like an asshole, etc., is it more or less likely that person acted with malicious intent in the matter at hand? And is it more or less likely that the judge, with his authority to decide upon admissibility of evidence, to approve or deny motions by the lawyers involved, and discretion to decide sentencing, is going to throw the book at an asshole or Mother Teresa?

      Today's lesson: don't be a dick. As far as the trial and its outcome is concerned, you'd BETTER be a likeable defendant.

      --
      Everybody gets what the majority deserves.
    2. Re:Karma's a bitch by hairyfeet · · Score: 3, Insightful

      It isn't about "likable" defendants it is about flagrant slander after ripping someone off! The courts tend to frown on those that brag about their acts when such acts are a violation of literally decades of established law and slandering the person that is taking you to court on a national medium like radio is NOT a smart move. Sorry but these ass clowns deserve to be sued along with the station for a VERY large amount of cash.

      To me this is no different than those asses like Ebaum that snatch anything they can find and try to pass it off as their own,or the pricks that steal GPL code and try to lock it behind a paywall. in all of the above you are taking something you have NO rights to and passing it off as your own and this isn't "information wants to be free" this is theft, as you are depriving someone else with your actions which in this case the photographer who is just trying to make a living.

      --
      ACs don't waste your time replying, your posts are never seen by me.
    3. Re:Karma's a bitch by Shikaku · · Score: 4, Funny

      For a car analogy of parent:

      If you run over somebody, don't back into their body and run it over again. And again. The courts find it really hard to believe that it was an accident otherwise.

  2. Copyright notice != CMI by Jabrwock · · Score: 2

    Copyright law already protects your photo, whether the copyright notice has been cropped or not. This is a stupidly broad application of "copyright management information".

    --
    Magic doesn't work in my presence. My power of disbelief is too strong.
    1. Re:Copyright notice != CMI by tepples · · Score: 4, Informative

      The title of a bill has no legal force. The statute covering such attribution is Title 17, United States Code, section 1202, which does not require that "copyright management information" be in digital form as a condition of protection.

    2. Re:Copyright notice != CMI by MachDelta · · Score: 2

      The photons.
      Sometimes. :P

    3. Re:Copyright notice != CMI by element-o.p. · · Score: 2, Interesting

      From the TFS: "...the appeals court said that a photo credit printed in the gutter of a magazine [emphasis mine]..." Yes, there are print magazines that are also published in electronic format, but TFS sounds like it was the print version, which TFA corroborates: "After the image appeared in the magazine, someone at WKXW scanned it without permission [emphasis mine, again]..."

      The radio station published it electronically, but the original image was published on paper and scanned by the radio station.

      While my sympathies are with the photographer in this instance and while I can easily see how the radio station's actions violated copyright on the image, I agree with GPP -- how, exactly, does the DIGITAL Millenium Copyright Act apply in this case? They weren't removing copyright/accreditation from an electronic format. I'm no lawyer, but it seems really asinine to apply the DMCA here. Obviously, however, the judge disagrees, and his opinion carries a lot more weight than mine.

      --
      MCSE? No, sir...I don't do Windows. Yes, I am an idealist. What's your point?
    4. Re:Copyright notice != CMI by bennomatic · · Score: 2

      We are in the digital millenium, which some felt required new laws for copyright. The content covered is not necessarily all digital.

      That being said, in this case, once it was scanned, it became digital. And all the prepress on the magazine was probably digital.

      --
      The CB App. What's your 20?
    5. Re:Copyright notice != CMI by meerling · · Score: 2

      It does now

    6. Re:Copyright notice != CMI by Plekto · · Score: 3, Insightful

      If you use it for your own personal use (say as a background image on your computer screen), no. Though, few people are that anal to go to such lengths for such a minor thing. If you use it in any commercial way or in any manner that is shown to the public, yes. This is basic copyright 101, folks. You can't show it or make money off of it, directly or indirectly, unless you pay royalties.

      This is exactly like removing the signature from a painting and passing it off as your own work. Of course they got reamed in court over it.

      Lazy employee costs company millions in legal fees. News at 10...

    7. Re:Copyright notice != CMI by rahvin112 · · Score: 3, Interesting

      I'd rather have the courts stick to the letter of the law and implement congress's bad law then have them try to dance around bad language and end up with a situation that's just as bad and has no clarity. This type of thing SHOULD fall under the DMCA and some high profile people should get stung by it.

  3. I'm unsurprisingly okay with that by AceCaseOR · · Score: 2

    Even if the picture in question was released under a Creative Commons Attribution license, you'd still have to include the attribution. If you don't include attribution in the first place you should be expecting to get sued.

    --
    Zagreus sits inside your head, Zagreus lives among the dead, Zagreus sees you in your bed and eats you in your sleep.
    1. Re:I'm unsurprisingly okay with that by pavon · · Score: 4, Informative

      Yeah unlike the anti-circumvention portion of the DMCA which bans tools just because they could be used for piracy, and thus effectively prevent any fair use of works, the copyright management information section seems fairly reasonably. It is entirely focused on removing or falsifying attribution of copyright. I don't know that the section needs to exist; removal of attribution could just be treated as strong evidence of willful infringement, which already carries higher punishment. But it doesn't seem actively harmful.

  4. Read the definition of CMI by pavon · · Score: 2

    Copyright law already protects your photo, whether the copyright notice has been cropped or not. This is a stupidly broad application of "copyright management information".

    No it isn't. A copyright notice is practically the definition of
    copyright management information

    (1) The title and other information identifying the work, including the information set forth on a notice of copyright.
    (2) The name of, and other identifying information about, the author of a 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. ...

    Again, this ruling has absolutely nothing to do with the anti-circumvention or take-down notice sections of the DMCA, so don't apply what you have heard about those part of the law to this ruling.

  5. Re:Copyright notice != CMI --- WRONG by DRJlaw · · Score: 2

    Copyright law already protects your photo, whether the copyright notice has been cropped or not. This is a stupidly broad application of "copyright management information".

    How so? Do you believe that copyright law 'already' protects "copyright management information" (absent the DMCA and this interpretation)? Or do you believe that removing "copyright management information" like this is not a bad act and does not create any additional harm? I hope neither, because on both counts you're wrong.

    Pre-DMCA copyright law wouldn't provide any additional protection or penalty if someone removed a byline, photographer's attribution, copyright notice, or the like. At best, you might spend an inordinate amount of time and money arguing for additional damages under a tort theory like slander of title. Meanwhile, the work, stripped of any indication of source and/or copyright, would have essentially been turned into an "orphaned work." People who obtained copies of the work couldn't determine who the original owner was in order to obtain permission to legally redistribute or modify the work, or worse yet could assume that the work was released into the public domain. That's assuming that the person who stripped the information didn't have the gall to claim that it is their own -- as if that never happens.

    This application is exactly what Congress intended:

    Sec. 1202. Integrity of copyright management information
    (a) False Copyright Management Information.
    No 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.

    (b) Removal or Alteration of Copyright Management Information. â" No person shall, without the authority of the copyright owner or the law â"

    (1) intentionally remove or alter any copyright management information,

    (2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or

    (3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law,

    knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

    (c) Definition -- As used in this section, the term "copyright management information" means 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:

    (1) The title and other information identifying the work, including the information set forth on a notice of copyright.

    (2) The name of, and other identifying information about, the author of a 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.

    (4) 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.

    (5) 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.

    (6) Terms and conditions for use of the work.

  6. Why this is covered by DMCA... by Desirsar · · Score: 2

    Too many comments asking this to reply to them all, and I don't want to explain it more than once.

    The copyrighted image was being hosted without permission on a website. In order to force the site to remove it, one must file a DMCA takedown notice. If the radio station had, for instance, copied the image and had it published in a different magazine without credit (which would not happen because the magazine would have asked for a credit to publish, but go with the example anyway...), DMCA would not apply. In short, the radio station's lawyers tried to argue that the source was not digital (a magazine), and the DMCA didn't apply. The appeals court correctly ruled that the site's use of the photo being digital, without regard to the source format, is covered by DMCA.