UNBUNDLING 17 U.S.C. § 1202: CONSTRUING THE LAW’S SCOPE IN LIGHT OF ITS TEXT, PURPOSE, AND REMEDIES

Authors

• Samuelson, Pamela
• Stallman, Erik
• Urban, Jennifer M.

Abstract

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. Courts have appropriately adopted an “identicality” requirement to keep §1202 liability true to the law’s text and purpose. The Article concludes by explaining why §1202 should not apply when a defendant’s works are merely substantially similar to the plaintiff’s works because this does not support an inference that the plaintiff’s CMI was tampered with. Upholding the Does’ theory of §1202 that substantial similarity should suffice would pose many unjustified risks to lawful uses of copyrighted works and undermine copyright norms even in ordinary infringement cases.

Recommended Citation

Samuelson, Pamela; Stallman, Erik; and Urban, Jennifer M., UNBUNDLING 17 U.S.C. § 1202: CONSTRUING THE LAW’S SCOPE IN LIGHT OF ITS TEXT, PURPOSE, AND REMEDIES, 66 Santa Clara L. Rev. 382 (2026).
Available at: https://digitalcommons.law.scu.edu/lawreview/vol66/iss3/1