Second Circuit Clarifies Double Scienter Requirement of the Digital Millennium Copyright Act in Mango v. BuzzFeed

By Califf Cooper

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The Second Circuit Court of Appeals held in Mango v. BuzzFeed that the Digital Millennium Copyright Act (“DMCA”) does not require proof that a defendant knew, or had reasonable grounds to know, that its conduct would lead to future, third-party infringement, in order to establish a violation of Section 1202(b), which prohibits intentional removal or alteration of Copyright Management Information and distribution of the work with removed or altered CMI, “knowing…that it will induce, enable, facilitate, or conceal an infringement.”

On August 13, 2020, the Second Circuit Court of Appeals offered valuable insight on the double scienter requirement of the Digital Millennium Copyright Act (“DMCA”).  The DMCA was enacted in 1998 “to strengthen copyright protection in the digital age” and the purpose of the statute as a whole was to expand – in some cases significantly – the rights of copyright owners.  One such expansion deals with Copyright Management Information (“CMI”) and protections from removal or alteration thereof.  Under Section 1202(b), it is unlawful to intentionally remove or alter CMI and distribute the work with removed or altered CMI, “knowing…that it will induce, enable, facilitate, or conceal an infringement.”  The question presented to the Second Circuit Court of Appeals was “whether the DMCA requires proof that a defendant knew, or had reasonable grounds to know, that its conduct would lead to future, third-party infringement.”  The court held that the plain language of the statute does not require such evidence.

In Mango v. BuzzFeed, BuzzFeed, an online media company, published a news article containing a photograph taken by Gregory Mango, a freelance photographer, without crediting him.  Mango brought an action against BuzzFeed for removal or alteration of CMI under the DMCA, Section 1202(b)(3).  Section 1202(b)(3) requires a plaintiff to show that the defendant distributed a copyrighted work knowing that CMI has been removed or altered without authorization and knowing, or having reasonable grounds to know, that such distribution will induce, enable, facilitate, or conceal a copyright infringement.  BuzzFeed argued that it cannot be held liable under the DMCA because there was no evidence that it knew its conduct would lead to future, third-party infringement of Mango’s copyright.

Under the “double-scienter” requirement of Section 1202(b)(3) of the DMCA, plaintiffs must prove: (1) actual knowledge that CMI was removed and/or altered without permission; and (2) constructive knowledge that such distribution “will induce, enable, facilitate, or conceal an infringement.”  The court held that the plain language of the statute does not limit “an infringement” by either actor (i.e., to third parties) or by time (i.e., to future conduct).

The court noted that “an infringement” is not limited to the infringing acts of third parties.  Thus, “a defendant’s awareness that distributing copyrighted material without proper attribution of CMI will conceal his own infringing conduct satisfies the DMCA’s second scienter requirement.”  Likewise, “an infringement” is not limited to future infringing conduct.  Even where the statute uses the word “will” – which indicates future action – it is used in conjunction with the words “induce, enable, facilitate, or conceal,” not with “an infringement.”  “So the statutory language requires constructive knowledge of future concealment, not future infringement.”  Accordingly, the Second Circuit Court of Appeals relied on the plain language of the statute to reject BuzzFeed’s argument that a plaintiff must show that a defendant knew its conduct would lead to future, third-party infringement of plaintiff’s copyright.

For copyright owners, this appellate decision is important in circumstances where an infringer argues that proof is required that they knew their actions would lead to future instances of infringement by third parties.  The Second Circuit Court of Appeals has now rejected this type of argument, clarifying the double scienter requirement of Section 1202 and clearing the path for copyright owners to win more DMCA cases.  Because there are relatively few appellate decisions interpreting many aspects of the DMCA, and further because the U.S. Court of Appeals for the Second Circuit is considered to be one of the most influential courts in copyright matters, it is reasonable to expect that the Mango v. BuzzFeed holding will be applied by at least most other U.S. courts faced with the same argument made unsuccessfully by BuzzFeed.