650 F.3d 295 (3rd Cir. 2011), 10-2163, Murphy v. Millennium Radio Group LLC

Docket Nº:10-2163.
Citation:650 F.3d 295
Opinion Judge:FUENTES, Circuit Judge:
Party Name:Peter MURPHY, Appellant, v. MILLENNIUM RADIO GROUP LLC; Craig Carton; Ray Rossi.
Attorney:Maurice Harmon (argued), Harmon & Seidman, LLC, Northampton, PA, for Appellant. David S. Korzenik (argued), Miller Korzenik Sommers LLP, New York, NY, Thomas J. Cafferty (argued), Gibbons P.C., Newark, NJ, for Appellee.
Judge Panel:Before: FUENTES and CHAGARES, Circuit Judges; POLLAK, District Judge.[*]
Case Date:June 14, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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650 F.3d 295 (3rd Cir. 2011)

Peter MURPHY, Appellant,



No. 10-2163.

United States Court of Appeals, Third Circuit.

June 14, 2011

Argued Jan. 25, 2011.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Maurice Harmon (argued), Harmon & Seidman, LLC, Northampton, PA, for Appellant.

David S. Korzenik (argued), Miller Korzenik Sommers LLP, New York, NY, Thomas J. Cafferty (argued), Gibbons P.C., Newark, NJ, for Appellee.

Before: FUENTES and CHAGARES, Circuit Judges; POLLAK, District Judge.[*]


FUENTES, Circuit Judge:

Peter Murphy (" Murphy" ) has filed an appeal from the decision of the District Court granting summary judgment to Millennium Radio Group, Craig Carton, and Ray Rossi (the " Station Defendants" ) on Murphy's claims for violation of the Digital Millennium Copyright Act (" DMCA" ), copyright infringement, and defamation under state law. For the reasons given below, we reverse on all counts.



In 2006, Murphy was hired by the magazine New Jersey Monthly (" NJM " ) to take a photo of Craig Carton and Ray Rossi, who at the time were the hosts of a show on the New Jersey radio station WKXW, which is owned by Millennium Radio Group. NJM used the photo to illustrate an article in its " Best of New Jersey" issue naming Carton and Rossi

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" best shock jocks" in the state. The photo (" the Image" ) depicted Carton and Rossi standing, apparently nude, behind a WKXW sign. Murphy retained the copyright to the Image.

An unknown employee of WKXW then scanned in the Image from NJM and posted the resulting electronic copy to the WKXW website and to another website, myspacetv.com. The resulting image, as scanned and posted to the Internet, cut off part of the original NJM caption referring to the " Best of New Jersey" award. It also eliminated NJM's gutter credit (that is, a credit placed in the inner margin, or " gutter," of a magazine page, ordinarily printed in a smaller type and running perpendicular to the relevant image on the page) identifying Murphy as the author of the Image. The WKXW website invited visitors to alter the Image using photo-manipulation software and submit the resulting versions to WKXW. A number of visitors eventually submitted their versions of the photo to WKXW, and it posted 26 of those submissions to its site. The Station Defendants never received Murphy's permission to make use of the Image.

When Murphy discovered the Image on the WKXW website, he communicated, via his attorney, with WKXW, demanding that the alleged infringement cease. Shortly thereafter, Carton and Rossi made Murphy the subject of one of their shows, allegedly stating that one should not do business with him because he would sue his business partners. They also allegedly implied that Murphy, who identifies himself as a married heterosexual and the natural father of children, was a homosexual.

In April 2008, Murphy sued the Station Defendants for violations of § 1202 of the Digital Millennium Copyright Act of 1998 (" DMCA" ), copyright infringement under the Copyright Act, 17 U.S.C. § 101 et seq., and defamation under New Jersey law. Murphy then served various discovery requests upon the Station Defendants, including deposition requests for Carton and Rossi and a corporate representative of Millennium Radio Group. At the behest of both Murphy and the Station Defendants, a number of delays in the discovery process followed. The magistrate judge held a conference with the parties after the end of the discovery period designated in the original case-management schedule, at which point only limited discovery had actually taken place. At that conference, the judge set a June 2009 deadline for the Station Defendants to file a motion to dismiss for failure to state a claim with respect to both the defamation and the DMCA claims.1

In May 2009, Murphy served additional discovery requests on the Station Defendants, who, in response, requested a stay of discovery while the motion to dismiss was pending. The magistrate judge granted this stay.

The Station Defendants then filed a motion for summary judgment on all claims. In response, Murphy filed a motion pursuant to Fed.R.Civ.P. 56(f) (now Fed.R.Civ.P. 56(d)), with accompanying affidavit, requesting additional discovery before the resolution of any summary judgment motions.

In March 2010, the District Court denied Murphy's motion pursuant to Fed.R.Civ.P. 56(f) and granted the Station Defendants' motion for summary judgment

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on all counts. Murphy now appeals the grant of summary judgment on all counts.2



A. DMCA claim

Murphy argues that, by reproducing the Image on the two websites without the NJM credit identifying him as the author, the Station Defendants violated the Digital Millennium Copyright Act. The DMCA was passed in 1998 to address the perceived need of copyright owners for " legal sanctions" to enforce various technological measures they had adopted to prevent the unauthorized reproduction of their works. See Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 458, 127 S.Ct. 1746, 167 L.Ed.2d 737 (2007). It also served " to conform United States copyright law to its obligations under two World Intellectual Property Organization (‘ WIPO’ ) treaties, which require contracting parties to provide effective legal remedies against the circumvention of protective technological measures used by copyright owners." MDY Indus. v. Blizzard Entm't, Inc., 629 F.3d 928, 942 (9th Cir.2010).

The most well-known provision of the DMCA, § 1201, grants a cause of action to copyright owners for the " circumvent[ion of] a technological measure that effectively controls access to a work." 17 U.S.C. § 1201(a)(1)(A). 3 Thus, for example, if a movie studio encrypts a DVD so that it cannot be copied without special software or hardware, and an individual uses his own software to " crack" the encryption and make copies without permission, the studio may pursue the copier both for simple infringement under the Copyright Act and, separately, for his circumvention of the encryption, which is a " technological measure" designed to " control ... access to" the DVD, under the DMCA. See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 444 (2d Cir.2001). Before the passage of the DMCA, the studio would have had only a cause of action under the Copyright Act. The DMCA has been criticized in some circles for its " potentially overbroad scope ... and its ability to chill legitimate and, in some cases, constitutionally protected speech." G. Parchomovsky & P. Weiser, Beyond Fair Use, 96 Cornell Law Review 91, 104 (2010).4

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Murphy's claim against the Station defendants involves § 1202 of the DMCA, which deals with " copyright management information" (" CMI" ). Section 1202(b) provides in part:

No person shall, without the authority of the copyright owner or the law—

(1) intentionally remove or alter any copyright management information, [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, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

Section 1202(c) then defines " copyright management information" as certain types of " information conveyed in connection with copies ... of a work ..., including in digital form, ...: (2) [t]he name of, and other identifying information about, the author of a work...." 5

Murphy's argument is straightforward. He contends that the NJM gutter credit identifying him as the author of the Image is CMI because it is " the name of ... the author of [the Image]" and was " conveyed in connection with copies of [the Image]." By posting the Image on the two websites without the credit, therefore, the Station Defendants " remove[d] or alter[ed]" CMI and " distribute [d]" a work knowing that its CMI had been " removed or altered" in violation of § 1202.6

The Station Defendants, on the other hand, insist that one cannot read § 1202 in isolation, but must interpret it in conjunction with § 1201 and in light of the legislative history of the DMCA to impose an additional limitation on the definition of CMI. They argue that the chapter as a whole protects various kinds of automated systems which protect and manage copyrights. Specifically, § 1201 covers the systems (the " technological measures" discussed above) that protect copyrighted materials and § 1202 covers the systems that manage copyrighted materials (such as the name of the author of a work). Therefore, they conclude, despite the apparently plain language of § 1202, information like the name of the author of a work is not CMI unless it also functions as part of an " automated copyright protection or management system." In other words, to remove, as the Station Defendants did, a printed credit from a magazine photograph which was then posted to a website does not violate § 1202, because the credit, although apparently meeting the definition of § 1202(c)(2), was not part of an " automated copyright protection or management system." They claim that both the legislative history of the DMCA and the language of the World Intellectual Property Organization treaties which the DMCA implemented support such a reading. Viewed thus, the Station Defendants argue, § 1202 will be seen not to apply to Murphy's name as it appeared in the gutter credit near the Image.

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We are not aware of any other federal appellate courts which have considered whether the definition of " copyright management information" should be restricted to the context of " automated copyright...

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