The DMCA is the Digital Millennium Copyright Act, of course. But easy does it with the “of courses”: Even though you need a copyright registration to file a copyright infringement lawsuit, you don’t need one to file a DMCA claim:
DMCA claim for unregistered work not dismissed—reg not required for 1202 "Registration 'is not a condition of copyright protection.' 17 U.S.C. § 408(a). Therefore, although the DMCA mentions infringement, the plain text does not require registration.”https://t.co/sE3mbyBztB
— Leslie Burns (@BurnsTheLawyer) November 11, 2019
A couple of several key paragraphs in this short opinion:
[A] plain reading of the DMCA does not establish that it is subject to the registration requirement found in 17 U.S.C. § 411(a). Such requirement pertains to “civil action[s] for infringement of the copyright.” 17 U.S.C. § 411(a). However, a DMCA action under Section 1202(b) is not an action for infringement, but rather for the improper removal or alteration of CMI or the distribution of a work with the knowledge that such CMI has been improperly removed or altered. 17 U.S.C. § 1202(b) (1)-(3). Although the DMCA does mention “infringement,” such infringement is not the subject of the civil action. Instead, the reference to infringement is used to describe the scienter requirement, wherein the defendant must know that the removal or alteration of CMI “will induce, enable, facilitate, or conceal an infringement of any right under this title.” Id. . . .
The one cited case in which a court found that the DMCA requires registration does not provide any analysis in arriving at that conclusion. See Sims v. Viacom, Inc., No. 2:11-cv-0675, 2012 WL 280609, at *4 (W.D. Pa. Jan. 31, 2012). Further, the decision is not binding precedent on this court, and other district courts have made the opposite conclusion. See Med. Broad. Co. v. Flaiz, No. Civ.A 02-8554, 2003 WL 22838094, at *3 (E.D. Pa. Nov. 25, 2003) (“Nothing in § 1202 of the DMCA suggests that registration is a precondition to a lawsuit.”); Gattoni v. Tibi, LLC, 254 F. Supp. 3d 659, 663-64 (S.D.N,Y. 2017); ECIMOS, LLC v. Carrier Corp., No. 2:15-cv-2726-JPM-cgc, 2018 WL 3589106, at *9 (W.D. Tenn. May 13, 2018); Exec. Corp. v. Oisoon, LLC, No. 3:16-cv-00898, 2017 WL 4310113, at *4 (M.D. Tenn. Sept. 28, 2017) .
For the foregoing reasons, the court is not persuaded that registration is required and finds that the motion to dismiss plaintiff’s DMCA claim should be denied.
Nice pickup by Leslie Burns!
