Unbundling 17 U.S.C. §1202: Construing the Law's Scope in Light of Its Text, Purpose, and Remedies

The Ninth Circuit will soon decide if five anonymous programmers can claim as much as $9 billion in statutory damages from OpenAI and GitHub for violations of an obscure law outlawing infringement-enabling removal or alteration of "copyright management information" (CMI). This Article closely analyzes that law, which is codified as §1202 of Title 17 of the U.S. Code. The law is remarkable in several respects. Statutory damages available for §1202 violations far exceed those available for actual copyright infringement. Copyright infringement need not be alleged, let alone found, for liability under §1202 to attach. Indeed, it is not even necessary to own a copyrighted work to claim a violation of §1202. These unusual features make §1202 an attractive complement in complaints alleging copyright infringement or infringement-adjacent conduct. This Article argues that courts should construe §1202 in keeping with Congress' reasons for enacting §1202: to address the risk of massive piracy of dissemination of perfect digital copies of works whose CMI was tampered with via the Internet. The Article traces §1202's origins and explains how the law's text and structure support a limited scope of application. In accordance, courts have attempted, often successfully, to limit §1202 cases; this Article identifies five inherent limitations in §1202's text, such as its double scienter requirement, and five additional, less obvious limiting principles, most significantly the so-called "identicality" requirement. The Article then focuses on the current Doe v. GitHub appeal in the Ninth Circuit and its implications for future §1202 litigations and copyright law.