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`FOR PUBLICATION
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
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`Civil Action No. 03-5221 (JAG)
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`OPINION
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`::
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`::
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`::::::::::
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`:
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`THE IQ GROUP, LTD. d/b/a
`INSURANCE IQ,
`Plaintiff,
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`
`v.
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`WIESNER PUBLISHING, LLC t/a
`ADVISORS DATA SOURCE and t/a IT
`BUYERS, and LISA HULAC; ERIC
`BENDER; NATIONAL SENIOR
`ASSOCIATES COMPANY, LLC;
`CAPITAL CARE, INC.; and
`JOHN DOES 1-100,
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`Defendants.
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`APPEARANCES:
`
`Stanley W. Kallmann, Esq.
`Gennet, Kallmann, Antin & Robinson, P.C.
`6 Campus Drive
`Parsippany, NJ 07054
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`ATTORNEYS FOR PLAINTIFF IQ GROUP, LTD.
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`Louis J. Seminski, Esq.
`Landman Corsi Ballaine & Ford P.C.
`One Gateway Center, Suite 400
`Newark, NJ 07102-5388
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`Timothy P. Getzoff, Esq.
`Holland & Hart LLP
`One Boulder Plaza
`1800 Broadway, Suite 300
`Boulder, CO 80302
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`ATTORNEYS FOR DEFENDANT WIESNER PUBLISHING, LLC
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`

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`Case 2:03-cv-05221-SDW-MCA Document 63 Filed 01/10/06 Page 2 of 20 PageID: 1289
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`GREENAWAY, JR., U.S.D.J.
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`This matter comes before the Court on the Motion for Summary Judgment by Defendant
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`Wiesner Publishing, LLC (“Wiesner”) and the Cross-Motion for Summary Judgment by Plaintiff
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`IQ Group, Ltd. (“IQ”), pursuant to FED. R. CIV. P. 56. For the reasons set forth below,
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`Defendant’s Motion will be granted in part and denied in part. Plaintiff’s Cross-Motion will be
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`denied.
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`INTRODUCTION
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`These motions arise in the context of a dispute between business competitors. IQ and
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`Wiesner are businesses that provide advertising services for insurance companies: they send ads
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`by email to insurance agents. In 2003, National Senior Associates Company, LLC (“NSAC”)
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`and Capital Care, Inc. (“Capital Care”), insurance companies, both hired IQ to send
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`advertisements. NSAC and IQ dispute who created the ad for NSAC, and thereby who is entitled
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`to claim authorship and hold the copyright. IQ distributed copies of ads for Capital Care and
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`NSAC via email to insurance agents; the ads sent by IQ displayed a graphic described by IQ as a
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`logo. The IQ logo consists of the outline of a capital “Q” with the outline of a lower-case “I” in
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`the center. Both outlines are shaded, as if in graphical relief. The ads also contained a hyperlink
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`that, when clicked, directed the user to a page of IQ’s website which IQ claims contained
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`copyright notices.
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` After IQ had distributed the NSAC and Capital Care ads, both NSAC and Capital Care
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`hired Wiesner to distribute the ads via email. Both NSAC and Capital Care provided Wiesner
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`with the ads that IQ distributed. Wiesner removed the IQ logo and hyperlink, added new
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`information so that responses to the ads would go to NSAC and Capital Care, and then copied
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`and distributed the ads via email.
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`IQ subsequently applied to the U.S. Copyright Office for copyright registration, claiming
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`authorship of the NSAC and Capital Care ads. IQ obtained copyright registrations as of October
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`22, 2003. IQ then filed suit against Wiesner, NSAC, Capital Care and other parties, stating
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`claims for: 1) slander, libel and conspiracy to defame IQ (Count 1, against Wiesner et al.); 2)
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`negligence in making false and damaging statements (Count 2, against Wiesner et al.); 3) breach
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`of contract (Count 3, not against Wiesner); 4) copyright infringement and violations of the
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`Digital Millennium Copyright Act (“DMCA”) (Count 4, against Wiesner et al.); 5) tortious
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`interference with business relationships (Count 5, against Wiesner et al.); and 6) copyright
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`infringement and violations of the DMCA (Count 6, not against Wiesner). Subsequently, IQ
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`conceded that it is not entitled to statutory damages for copyright infringement related to the
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`Capital Care ad. (Pl. Mem. Opp. Mot. S.J. 16.)
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`The instant motion and cross-motion for summary judgment concern the claims of
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`copyright infringement and violation of the DMCA. Wiesner filed a motion for summary
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`judgment on these issues: 1) IQ is entitled to a maximum of one award of statutory damages for
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`copyright infringement of the NSAC and Capital Care ads; and 2) IQ’s DMCA claims, for
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`violation of 17 U.S.C. § 1202, should be dismissed as a matter of law. IQ filed a cross-motion
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`for summary judgment on these issues: 1) Wiesner has infringed IQ’s copyright on the NSAC ad;
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`2) IQ is entitled to statutory damages for Wiesner’s infringement of the copyright on the NSAC
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`ad; 3) IQ is entitled to increased statutory damages for Wiesner’s willful infringement of the
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`copyright on the NSAC ad; and 4) Wiesner violated the DMCA, 17 U.S.C. § 1202, with regard to
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`both the Capital Care and NSAC ads.
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`3
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`ANALYSIS
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`I.
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`Governing Legal Standards
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`A.
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`Standard for a Rule 56 Motion for Summary Judgment
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`Summary judgment is appropriate under FED. R. CIV. P. 56(c) when the moving party
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`demonstrates that there is no genuine issue of material fact and the evidence establishes the
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`moving party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
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`317, 322-23 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). In
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`making this determination, the Court must draw all reasonable inferences in favor of the non-
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`movant. Hullett v. Towers, Perrin, Forster & Crosby, Inc., 38 F.3d 107, 111 (3d Cir. 1994); Nat’l
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`State Bank v. Fed. Reserve Bank of N.Y., 979 F.2d 1579, 1581 (3d Cir. 1992).
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`Once the moving party has satisfied its initial burden, the party opposing the motion must
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`establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v.
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`Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for
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`summary judgment cannot rest on mere allegations and instead must present actual evidence that
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`creates a genuine issue as to a material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
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`242, 248 (1986); Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir.
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`1995). “[U]nsupported allegations . . . and pleadings are insufficient to repel summary
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`judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also FED.
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`R. CIV. P. 56(e) (requiring nonmoving party to “set forth specific facts showing that there is a
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`genuine issue for trial”).
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`If the nonmoving party has failed “to make a showing sufficient to establish the existence
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`of an element essential to that party’s case, and on which that party will bear the burden of proof
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`at trial, . . . there can be ‘no genuine issue of material fact,’ since a complete failure of proof
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`concerning an essential element of the nonmoving party’s case necessarily renders all other facts
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`immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
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`477 U.S. at 322-23). In determining whether there are any issues of material fact, the Court must
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`resolve all doubts as to the existence of a material fact against the moving party and draw all
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`reasonable inferences – including on issues of credibility – in favor of the non-moving party.
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`Watts v. Univ. of Del., 622 F.2d 47, 50 (3d Cir. 1980).
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`II.
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`Defendant’s Motion for Summary Judgment
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`A.
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`Plaintiff’s Maximum Entitlement to Statutory Damages
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`In the Complaint, pursuant to Count 4, IQ seeks the greater of actual damages or statutory
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`damages for copyright infringement. The parties do not dispute that Plaintiff has subsequently
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`elected to seek statutory damages for copyright infringement under 17 U.S.C. § 504(c)(1). The
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`parties also agree that Plaintiff is not entitled to statutory damages in regard to the Capital Care
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`ad. Wiesner asks the Court to determine simply whether Plaintiff is entitled to one or multiple
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`statutory damage awards if infringement of the NSAC ad is proven, under 17 U.S.C. § 504(c).
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`Wiesner contends that only one award of statutory damages is available under this statute. IQ
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`does not address the question of number in its responsive brief, which argues only that it is
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`entitled to statutory damages under 17 U.S.C. § 504(c). In the Complaint, IQ seeks statutory
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`damages “for each E-mail sent by the defendants in violation of 17 U.S.C. § 1202,” but does not
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`quantify its request for damages under 17 U.S.C. § 504(c) as to each email. (Compl. 9.) Because
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`IQ takes no position as to how many damage awards it seeks, there may be no controversy
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`between the parties on this matter.
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`Wiesner asks the Court for summary judgment on a question that is speculative rather
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`than the subject of a live dispute. The Constitution requires that a “case or controversy” be
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`before a court; judgment on a hypothetical issue is advisory, and federal courts may not render
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`advisory opinions. Herb v. Pitcairn, 324 U.S. 117, 126 (1945) (“We are not permitted to render
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`an advisory opinion.”) Wiesner implicitly acknowledges the advisory nature of the relief sought
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`here in stating that this motion is “in order to assist the parties in a proper valuation of this case.”
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`(Def.’s Br. Supp. S. J. 16.)
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`Alternatively, issues of damages are not ready for resolution before the predicate
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`infringement has been determined: under 17 U.S.C. § 504, only an infringer is liable for
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`damages, and there has been no judgment of infringement.
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`Summary judgment on this question is denied, as the issue is not ripe for consideration.
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`B.
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`Plaintiff’s DMCA Claim
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`Pursuant to Count 4 of the Complaint, IQ alleges that Wiesner violated the DMCA, 17
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`U.S.C. § 1202. The parties do not dispute that, in reproducing and distributing the NSAC and
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`Capital Care ads, Wiesner removed the IQ logo and the “Legal Notice” hyperlink. IQ claims that
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`this constitutes actionable 1) removal of copyright management information under § 1202(b)(1);
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`2) distribution of false copyright management information under § 1202(a)(2); 3) distribution of
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`copyright management information knowing that the copyright management information has
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`been removed, under § 1202(b)(2); and 4) distribution of copies of works knowing that the
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`copyright management information has been removed, under § 1202(b)(3) . Wiesner argues that
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`the logo and hyperlink cannot fall within the scope of the statute, as set out in 17 U.S.C. §
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`1202(c), and asks the Court to rule on this as a matter of law.
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`6
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`The DMCA provision at issue, 17 U.S.C. § 1202(c), defines “copyright management
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`information” in eight categories. IQ contends that the logo falls within category 2 (“[t]he name
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`of, and other identifying information about, the author of a work”), category 3 (“[t]he name of,
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`and other identifying information about, the copyright owner of the work”), and category 7
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`(“[i]dentifying numbers or symbols referring to such information or links to such information”).
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`IQ contends as well that the hyperlink falls within categories 3 and 7, and that the hyperlink
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`points to a website containing information falling within category 6 (“[t]erms and conditions for
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`use of the work”).
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`Wiesner asks the Court to rule, as a matter of law, that a logo cannot constitute copyright
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`management information, as defined by 17 U.S.C. § 1202(c). IQ does not argue that the logo is
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`a name, but that it is identifying information about a name of an author or copyright owner, as
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`well as an identifying symbol. IQ provides no legal authority for its propositions.
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`IQ’s arguments that the logo and hyperlink are within the scope of § 1202 fail for two
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`reasons. First, as to the logo, IQ’s position impermissibly blurs the distinction between
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`trademark law and copyright law. Second, properly interpreted, § 1202 does not apply to either
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`the logo or the hyperlink, under these facts.
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`1.
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`The DMCA in the framework of trademark and copyright law
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`In effect, IQ asks this Court to construe the DMCA so as to allow a logo, functioning as a
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`service mark, to come within the definition of copyright management information which, by
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`operation of the DMCA, would act to protect the copyright of its owner. This construction of the
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`DMCA would allow trademarks to invoke DMCA provisions meant to protect copyrights. As
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`discussed infra, this turns the DMCA into a species of mutant trademark/copyright law, blurring
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`the boundaries between the law of trademarks and that of copyright. There is no evidence that
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`Congress intended such an extreme outcome in enacting the DMCA.
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`A logo, to the extent that it communicates source-distinguishing information about
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`whatever it is attached to, operates as a trademark or service mark. As IQ appears to use its logo
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`to indicate itself as the source of the advertising services it provides, it would operate as a service
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`mark. The Lanham Act defines a service mark as “any word, name, symbol, or device, or any
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`combination thereof . . . used . . . to identify and distinguish the services of one person, including
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`a unique service, from the services of others and to indicate the source of the services, even if
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`that source is unknown.” 15 U.S.C. § 1127. Under this definition, the mark identifies the
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`services so as to distinguish them from those of others, but merely indicates the source.
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`Looking only at the literal language of the statute, IQ’s construction is not implausible: a
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`logo in an email, to the extent that it operates as a trademark or service mark, could communicate
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`information that indicates the source of the email. It is a symbol that refers to identifying
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`information, so a very broad interpretation of § 1202(c) might conceivably include a logo. The
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`problem is that this construction allows a trademark to invoke DMCA protection of copyrights,
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`eliminating the differentiation of trademark from copyright that is fundamental to the statutory
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`schemes. If every removal or alteration of a logo attached to a copy of a work gives rise a cause
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`of action under the DMCA, the DMCA becomes an extension of, and overlaps with, trademark
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`law.
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`The Supreme Court cautioned against blurring the boundaries between trademark law and
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`copyright law in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003). In
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`Dastar, Twentieth Century Fox argued for an interpretation of the Lanham Act that would have
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`established a cause of action under trademark law for “misrepresentation of authorship of
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`noncopyrighted works.” Id. at 35. The Court reasoned that this would cause an overlap with
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`copyright law and rejected it: “The problem with this argument according special treatment to
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`communicative products is that it causes the Lanham Act to conflict with the law of copyright,
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`which addresses that subject specifically. . . .Thus, in construing the Lanham Act, we have been
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`careful to caution against misuse or over-extension of trademark and related protections into
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`areas traditionally occupied by patent or copyright.” Id. at 33-34. The Court warned that
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`disregarding the trademark/copyright law distinction “would create a species of mutant copyright
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`law.” Id. at 34.
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`Here, IQ argues for an interpretation of copyright law that, similarly, would make the two
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`legal schemes overlap. But rather than an interpretation of the Lanham Act, as in Dastar, IQ here
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`seeks an interpretation of the DMCA that would blur the boundaries between copyright and
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`trademark. Following Dastar, this Court rejects this argument.
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`Furthermore, “intellectual property owners should not be permitted to recategorize one
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`form of intellectual property as another.” Chosun Int'l v. Chrisha Creations, Ltd., 413 F.3d 324,
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`328 (2d Cir. 2005). Although IQ has not argued that the logo is a service mark, logos are usually
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`considered to invoke trademark protection, not copyright protection. IQ should not be permitted
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`to recategorize its mark so as to invoke copyright protection.
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`If this Court were to recategorize the mark so as to invoke copyright protection, it would
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`lead to another problem: Wiesner observes that the original ads contained not only the IQ logo,
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`but the logos for NSAC and Capital Care as well. Following IQ’s argument, these logos could
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`serve as copyright information as well. We could end up with a document with conflicting
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`copyright information. IQ’s argument could lead to absurd results.
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`2.
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`The DMCA: Statutory Interpretation of § 1202
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`The statutory interpretation of § 1202 is a matter of first impression, as no courts have
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`reported cases addressing the definition of “copyright management information.” In the reported
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`cases involving § 1202, courts have denied application of the statute based on failure to prove the
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`knowledge or intent requirements for violation. See Ward v. Nat'l Geographic Soc'y, 208 F.
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`Supp. 2d 429, 449 (S.D.N.Y. 2002); Schiffer Publ'g, Ltd. v. Chronicle Books, LLC, 2004 U.S.
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`Dist. LEXIS 23052 (E.D. Pa. 2004); Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116, 1122 (C.D.
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`Cal. 1999).
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`The text of § 1202 appears to define “copyright management information” quite broadly,
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`to the point that the section, read literally, applies wherever any author has affixed anything that
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`might refer to his or her name. Examination of the legislative history, as well as extrinsic
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`sources, however, shows that the statute should be subject to a narrowing interpretation.
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`Law professor Julie E. Cohen has written widely on the DMCA and on copyright
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`management information. See generally Julie E. Cohen, Copyright and The Jurisprudence of
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`Self-Help, 13 Berkeley Tech. L.J. 1089 (1998). Cohen explains that, traditionally, authors have
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`relied on copyright law to define and protect their legal rights. Now, however, new technologies
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`can control access to works, such that technology attached to the work itself defines and protects
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`the legal rights of the copyright owner. The DMCA directly protects not the copyrights, but the
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`technological measures that protect the copyrights. In Cohen’s view, copyright management
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`information (“CMI”) is limited to components of such technological measures. This central
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`insight is confirmed by examination of the history of § 1202.
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`It is frequently stated that Congress enacted the DMCA in order to implement the World
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`Intellectual Property Organization (“WIPO”) Copyright Treaty and the WIPO Performances and
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`Phonograms Treaty. H.R. Rep. No. 105-551 (1998). It is true that enactment of the DMCA
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`brought United States copyright law into compliance with these treaties. Id. Thus, the WIPO
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`treaties are useful in understanding § 1202.
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`The WIPO treaties mandated protection of copyright management information.
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`According to Severine Dusollier, WIPO protected CMI as part of “a double protection for
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`technical measures.” S. Dusollier, Some Reflections on Copyright Management Information and
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`Moral Rights, 25 Colum. J.L. & Arts 377, 382 (2003). In the framework of the WIPO treaties,
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`technical measures such as CMI are components of automated copyright protection systems: “As
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`digital identification systems and other technologies that enable the marking and protection of
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`works have started to develop, rightholders have feared that these technological tools might
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`themselves be cracked by other technologies or machines, or that they might be easily modified
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`or removed.” Id. The WIPO treaties, and hence the DMCA, protect CMI so as to protect the
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`technological measures of copyright protection themselves. This echoes the understanding of the
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`DMCA expressed by Cohen, supra.
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`
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`Although many view the DMCA as implementing the WIPO treaties, in fact, §§ 1201 and
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`1202 were drafted prior to the treaties. President Clinton established the Information
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`See also Julie E. Cohen, A Right to Read Anonymously: A Closer Look at ‘Copyright
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`Management’ in Cyberspace, 28 Conn. L. Rev. 981, 984 (1996) (“new digital monitoring and
`metering technologies define the burgeoning field of ‘copyright management’”).
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`Infrastructure Task Force in 1993 with the mandate to develop comprehensive information
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`technology policies and programs that would promote the development of the national
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`information infrastructure (“NII”). The Working Group on Intellectual Property Rights,
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`Intellectual Property and the National Information Infrastructure, executive summary (1995).
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`“The Working Group on Intellectual Property Rights was established within the Information
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`Infrastructure Task Force to examine the intellectual property implications of the NII and make
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`recommendations on any appropriate changes to U.S. intellectual property law and policy.” Id.
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`The Working Group held extensive hearings and wrote the Report of the Working Group on
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`Intellectual Property Rights, just cited.
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`Released in September, 1995, and known as the “White Paper,” the Report presented a
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`draft of §§ 1201 and 1202, and discussed the rationale for these sections:
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`Systems for managing rights in works are being contemplated in the development
`of the NII. These systems will serve the functions of tracking and monitoring uses
`of copyrighted works as well as licensing of rights and indicating attribution,
`creation and ownership interests. A combination of file- and system-based access
`controls using encryption technologies, digital signatures and steganography are,
`2
`and will continue to be, employed by owners of works to address copyright
`management concerns. Such security measures must be carefully designed and
`implemented to ensure that they not only effectively protect the owner's interests
`in the works but also do not unduly burden use of the work by consumers or
`compromise their privacy. And measures should be studied to ensure that systems
`established to serve these functions are not readily defeated.
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`To implement these rights management functions, information will likely be
`included in digital versions of a work (i.e., copyright management information) to
`inform the user about the authorship and ownership of a work (e.g., attribution
`information) as well as to indicate authorized uses of the work (e.g., permitted use
`information). For instance, information may be included in an ‘electronic
`envelope’ containing a work that provides information regarding authorship,
`copyright ownership, date of creation or last modification, and terms and
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`2
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`As explained in the Report, steganography is digital watermarking. (Id. 188.)
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`conditions of authorized uses. As measures for this purpose become incorporated
`at lower levels (e.g., at the operating system level), such information may become
`a fundamental component of a file or information object.
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`Once information such as this is affiliated with a particular information object
`(e.g., data constituting the work) and readily accessible, users will be able to easily
`address questions over licensing and use of the work. For example, systems for
`electronic licensing may be developed based on the attribution or permitted use
`information associated with an information object.
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`(Id. 191-192.)
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`The White Paper understood “copyright management information” to be information
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`about authorship, ownership, and permitted uses of a work that is included in digital versions of
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`the work so as to implement “rights management functions” of “rights management systems.”
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`Such systems are conceived of as electronic and automated within the environment of a computer
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`network.
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`As a model rights management system, the White Paper points to the Library of
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`Congress’ Electronic Copyright Management System, as described in R.E. Kahn, Deposit,
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`Registration and Recordation in an Electronic Copyright Management System, Proceedings of
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`Technical Strategies for Protecting Intellectual Property in the Networked Multimedia
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`Environment, Interactive Multimedia Assoc. (Jan. 1994). This paper describes the operation of
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`an automated rights management system within a computer network environment. This system
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`would automate the process of granting usage rights online, providing “automated rights
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`clearance . . . which would accelerate permissions and royalty transfers between users and
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`rightsholders.” Id. This could produce the “effect of creating an instant electronic marketplace
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`for such information.” Id.
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`The White Paper demonstrates that the Working Group on Intellectual Property Rights, in
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`drafting § 1202, understood this section to protect the integrity of automated copyright
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`management systems functioning within a computer network environment. This interpretation is
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`confirmed by contemporaneous commentary:
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`The prerequisite to enforcement on the information superhighway is the ability to
`discover incidents of electronic infringement and identify the person(s)
`responsible. One step in this direction is the development of methods for the
`authentication and identification of copyrighted works transmitted over the
`information superhighway. . . The use of copyright identification information will
`be to no avail, however, if sophisticated infringers simply alter or destroy this
`information. Recognizing this problem, the Working Group recommends, as part
`of its proposal to add a new chapter 12 to the Copyright Act, a provision that
`would prohibit and impose criminal penalties for the fraudulent use, removal, or
`alteration of copyright management information.
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`Jessica R. Friedman, A Lawyer’s Ramble Down the Information Superhighway: Copyright, 64
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`Fordham L. Rev. 705, 719 (1995).
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` The draft legislation presented in the White Paper was introduced in both houses of
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`Congress immediately upon its release as the “The National Information Infrastructure Copyright
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`Protection Act” (“NIICPA”). See Julie E. Cohen, A Right to Read Anonymously: A Closer Look
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`at ‘Copyright Management’ in Cyberspace, 28 Conn. L. Rev. 981, 989 (1996). As Congress
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`developed the DMCA, the NIICPA was incorporated into it. Sections 1201 and 1202 underwent
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`no significant revision between drafting in 1995 and enactment in 1998 under section 103 of the
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`DMCA, Public Law 105-304.
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`The Congressional committees which considered the DMCA published a number of
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`reports on the Act relevant to §§ 1201 and 1202. There is little discussion, however, of § 1202.
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`The Senate Committee Report provides this commentary:
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`Rights management information is ‘information which identifies the work, the
`author of the work, the owner of any right in the work, or information about the
`terms and conditions of use of the work . . . which is attached to a copy of a work
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`or appears in connection with communication of the work to the public.’ Art. 12.
`Rights management information is more commonly referred to in the U.S. as
`copyright management information (CMI). The purpose of CMI is to facilitate
`licensing of copyright for use on the Internet and to discourage piracy.
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`Copyright Management Information (CMI) is an important element in establishing
`an efficient Internet marketplace in copyrighted works free from governmental
`regulation. Such information will assist in tracking and monitoring uses of
`copyrighted works, as well as licensing of rights and indicating attribution,
`creation and ownership.
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`Under the bill, CMI includes such items as the title of the work, the author, the
`copyright owner, and in some instances, the writer, performer, and director. CMI
`need not be in digital form, but CMI in digital form is expressly included.
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`S. Rep. No. 105-190 (1998) . Viewed alone, this gives only a vague idea as to what copyright
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`management information is and how it functions. It is, however, consistent with the
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`understanding established supra, as it emphasizes the role of such information in facilitating
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`licensing on the Internet, discouraging piracy, and establishing an efficient Internet marketplace.
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`There is nothing to suggest that the Senate Committee understood § 1202 differently from the
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`Working Group, as protecting the integrity of automated copyright management systems
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`functioning within a computer network environment.
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`Similarly, the House Committee stated: “A new ‘Section 1202’ to the Copyright Act is
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`required by both WIPO Treaties to ensure the integrity of the electronic marketplace by
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`preventing fraud and misinformation.” H.R. Rep. No. 105-551 (1998). This committee report,
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`in addressing a different DMCA section, states: “It may, in appropriate circumstances include the
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`absence of customary indicia of ownership or authorization, such as a standard and accepted
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`digital watermark or other copyright management information.” Id. This shows that Congress
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`viewed a digital watermark as an example of copyright management information.
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`One company that performs digital watermarking provides this definition: “digital
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`watermarking technologies allow users to embed into audio, images, video and printed
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`documents a digital code that is imperceptible during normal use but readable by computers and
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`software.” Digimarc, About Digital Watermarking, http://www.digimarc.com/watermark/about/
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`(last visited Dec. 20, 2005). Again, these references show an understanding of § 1202 and
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`copyright management information as involving automated copyright management systems
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`functioning within a computer network environment.
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`The legislative history is otherwise helpful in showing how Congress understood the
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`DMCA as a whole. The committee reports show that Congress intended the DMCA to apply to
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`“electronic commerce” and the “electronic marketplace” (H.R. Rep. No. 105-551 (1998)) and to
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`“digital networks” (S. Rep. No. 105-190 (1998)). Furthermore, the reports show that Congress
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`viewed §§ 1201 and 1202 together as preventing circumvention of the “technological measures”
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`referred to in § 1201: “Subsection (a) of Section 103 thus amends title 17 to establish this new
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`Chapter 12 to the Copyright Act to protect against certain acts of circumvention of technological
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`measures employed by copyright owners to defend against unauthorized access to or copying of
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`their works.” Staff of H. Comm. on the Judiciary, 105 Cong., Section-by-Section Analysis of
`th
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`H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998 (Comm.
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`Print 1998).
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`This interpretation of § 1202 makes sense additionally because it fits § 1201 with § 1202,
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`and with chapter 12 as a whole. The language of § 1201 expressly states that it concerns the
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`circumvention of a “technological measure” which either “effectively controls access to a work”
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`or “effectively protects a right of a copyright owner.” These two provisions are sections within a
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`common chapter (chapter 12, “Copyright Protection and Management Systems”) and are the two
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`provisions covered by the remedies and penalty provisions of §§ 1203 and 1204. Chapter 12, as
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`a whole, appears to protect automated systems which protect and manage copyrights. The
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`systems themselves are protected by § 1201 and the copyright information used in the
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`functioning of the systems is protected in § 1202.
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`This interpretation fits well with statements in the legislative history about the historical
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`context of the DMCA. Congress intended the DMCA to modernize copyright protection as a
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`response to the development of new technologies which both enabled new forms of copyright
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`protection as well as new forms of copyright infringement. As observed by Cohen and discussed
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`supra, traditionally, the rights of authors have been managed by people, who have controlled
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`access and reproduction. Throug