Mango v. Buzzfeed, Inc.
970 F.3d 167 (2020)
Rule of Law:
Section 1202(b)(3) of the Digital Millennium Copyright Act (DMCA) does not require a plaintiff to prove that a defendant knew its distribution of copyrighted work with altered or removed copyright management information (CMI) would lead to future, third-party copyright infringement; rather, it encompasses the defendant's knowledge that such distribution will conceal its own infringement.
Facts:
- Gregory Mango is a freelance photographer who regularly licenses his photos, including to the New York Post.
- BuzzFeed, Inc. is an online media company that produces news, entertainment, and lifestyle content.
- Mango took a photograph of Raymond Parker, who was a lead figure in a discrimination lawsuit.
- In January 2017, the New York Post licensed Mango's Photo and published it alongside an article, including Mango's name as a "gutter credit."
- Almost three months later, BuzzFeed journalist Michael Hayes published an article about Parker and included Mango's Photo without asking Mango for permission.
- Instead of listing Mango's name in the gutter credit, Hayes listed the name of Parker's attorneys' law firm, Fisher & Taubenfeld.
- Hayes downloaded the Photo from the New York Post website himself, despite having asked Parker's attorneys for a photo.
- Hayes was a six-year veteran journalist at BuzzFeed who had written over 1,000 articles, all of which included a photograph, and it was his custom to credit photographers by name or photo outlet.
- Hayes had understood from his training and experience that he was required to get permission to use photographs.
Procedural Posture:
- Gregory Mango filed a two-count complaint against BuzzFeed, Inc., in the U.S. District Court for the Southern District of New York, alleging (1) copyright infringement under the Copyright Act, and (2) removal or alteration of CMI under the DMCA.
- Prior to trial, BuzzFeed stipulated to liability on the copyright infringement count.
- After a one-day bench trial, the district court (Judge Marrero) found BuzzFeed liable on the DMCA count and awarded damages on both counts, including $5,000 for the DMCA violation.
- The district court also ruled that Mango was entitled to reasonable attorneys’ fees and costs, later awarding $65,132.50 in fees and $1,810.03 in costs.
- BuzzFeed, Inc., as Defendant-Appellant, appealed the district court's judgment regarding the DMCA claim to the United States Court of Appeals for the Second Circuit.
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Issue:
Does Section 1202(b)(3) of the Digital Millennium Copyright Act (DMCA) require proof that a defendant knew, or had reasonable grounds to know, that its conduct of distributing copyrighted material with removed or altered copyright management information (CMI) would lead to future, third-party copyright infringement?
Opinions:
Majority - Circuit Judge Park
No, Section 1202(b)(3) of the Digital Millennium Copyright Act does not require proof that a defendant knew its actions would lead to future, third-party infringement; instead, it encompasses knowledge that the distribution of copyrighted material with removed or altered CMI will conceal the defendant's own infringement. The court's interpretation begins with the plain language of 17 U.S.C. § 1202(b)(3), which establishes a "double-scienter" requirement. The first element demands actual knowledge that CMI "has been removed or altered without authority." The second requires knowing, or having reasonable grounds to know, that the distribution "will induce, enable, facilitate, or conceal an infringement." The court found that "an infringement" is not limited by actor (e.g., to third parties) or by time (e.g., to future conduct). Therefore, the plain meaning includes an infringement committed by the defendant, and awareness that distributing copyrighted material without proper CMI will conceal the defendant's own infringing conduct satisfies the second scienter requirement. The word "will" in the statute applies to "induce, enable, facilitate, or conceal," indicating future concealment, not necessarily future infringement. This interpretation aligns with the DMCA's purpose to provide broad protections to copyright owners. The court affirmed the district court's findings that BuzzFeed distributed the Photo knowing Mango's gutter credit had been removed or altered without permission, and distributed it with a false credit knowing this would conceal the fact that Hayes lacked authority to use the Photo. The court distinguished Stevens v. Corelogic, Inc. by noting that the plaintiffs in that case did not allege or prove an underlying copyright infringement by the defendants themselves, thus forcing them to argue for future, third-party infringement. Here, BuzzFeed's own infringement was at issue and contributed to the fulfillment of the DMCA's scienter requirement.
Analysis:
This decision significantly clarifies the scope of liability under DMCA Section 1202(b)(3), specifically the second 'scienter' element concerning knowledge of infringement. By affirming that 'an infringement' can refer to the defendant's own copyright infringement, and that the required knowledge is of future concealment rather than future, third-party infringement, the Second Circuit has broadened the applicability of DMCA claims against direct infringers who remove or alter CMI. This interpretation strengthens copyright protections in the digital age, making it harder for online publishers and similar entities to avoid liability by claiming ignorance of downstream consequences when they have actively concealed their own unauthorized use. The ruling serves as a deterrent against the deliberate removal or alteration of attribution, particularly where such actions are intended to mask the original infringement.
