Second Circuit Frames Novel Issue of Photographer’s Claim of Copyright Infringement and DMCA Violation
The facts in Mango v. BuzzFeed are fairly straight forward. Mango is a freelance photographer who licensed a photograph to the New York Post. The Post included the photo in a story and below the photo included Mango’s name – an attribution known in the publishing industry as a “gutter credit”. Three months after the story was published by the Post, BuzzFeed published a related story and included Mango’s photo. BuzzFeed did not get permission from Mango to use the photo. Further, BuzzFeed removed Mango’s name from the gutter credit. Mango sued for copyright infringement and for removal or alteration of copyright management information under the DMCA. Prior to trial BuzzFeed stipulated to liability on the copyright infringement claim, leaving Mango’s DMCA claim as the sole issue for the District Court
Congress enacted the DMCA in 1998 to strengthen copyright protection in the digital age. One part of the DMCA made unlawful certain acts that tended to be ancillary to acts of online copyright infringement, including to the circumvention of measures that control access to copyrighted works. The DMCA also created the framework for what is commonly referred to as a “copyright takedown” and provided a safe harbor for Internet service providers against copyright infringement provided they comply with specific statutory requirements.
Included in the DMCA is a prohibition on the removal or alteration of Copyright Management Information (“CMI”). The term “Copyright Management Information” includes the following: 1) the title or other information identifying the work; 2) the name of the author of the work; and 3) the name of the copyright owner of the work. Section 1202(b) of the DMCA lays out the prohibited conduct. It provides as follows:
No person shall, without the authority of the copyright owner or the law—
(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… having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.
Liability under this section requires “double-scienter” – actual knowledge that that CMI was removed or altered, and constructive knowledge that such removal or alteration may induce, enable, facilitate or conceal an act of infringement. In Mango v. BuzzFeed, the Second Circuit had the opportunity to address a novel issue – is the “act of infringement” referenced in Section 1202(b) of the DMCA limited to a third-party claim or otherwise.
The DMCA’s first scienter element requires that a defendant distributing copyrighted material have actual knowledge that CMI “has been removed or altered without the authority of the copyright owner or the law.” 17 U.S.C. § 1202(b). The second scienter element of the DMCA requires that a defendant know or have reason to know that distribution of copyrighted material despite the removal of CMI “will induce, enable, facilitate, or conceal an infringement.” The Second Circuit found that, based on a plain reading of the statute, “an infringement” is not limited by actor (i.e., to third parties) or by time (i.e., to future conduct). While future copyright infringement by a third party may constitute “an infringement”, the Second Circuit held that nothing in the statutory language limits it to such later infringements. BuzzFeed’s own infringement was “an infringement” – its awareness that it was distributing copyrighted material without proper attribution potentially concealed its own infringing conduct thereby satisfying the DMCA’s second scienter requirement.