Article III Standing and DMCA Claims

U.S. federal courts are courts of limited jurisdiction and may only hear cases which Congress, acting under its constitutional authority, prescribes.  Jurisdiction in the federal courts is presumed not to exist, with the party asserting its existence bearing the burden of establishing it. The source of federal courts' limited authority is Article III § 2 of the Constitution, which provides that the federal courts shall have jurisdiction over “Cases, In Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."

Until 1875, absent a special grant of subject-matter jurisdiction, federal question cases were heard in state court unless diversity jurisdiction existed. In the case of copyright, the Copyright Act of 1790 did not provide for jurisdiction in the federal courts over infringement claims, but instead provided in Section 2 that a suit for infringement would be “by action of debt in any court of record in the United States, whether the same is cognizable.” That included state courts which did hear copyright cases under the 1790 Act. In 1819, the federal circuit courts were given original (but not exclusive) jurisdiction over copyright cases. The 1856 Act, which granted a public performance right to dramatic compositions, limited jurisdiction to suits involving infringement of that right to the federal courts. Exclusive jurisdiction over copyright and patent cases was finally vested in the federal courts in an 1873 judiciary reform bill. This special subject-matter jurisdiction provision is currently found in 28 U.S.C.A. § 1338(a):

The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases.

Notwithstanding the ability of federal courts generally to hear copyright cases, individual plaintiffs must also have "standing," a Supreme Court created requirement (like almost all of constitutional law).  There have been many formulations by the Court about the precise nature of the standing requirements. A recent, and oft-cited one is from TransUnion LLC v. Ramirez, 594 U.S. 413 (2021). For our purposes, the relevant passage is this: 

"Central to assessing concreteness is whether the asserted harm has a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including (as relevant here) reputational harm"

As in many Supreme Court opinions these days, the answer depends on one's view of history. For straight-up copyright infringement, this is easy since there were English copyright laws in the 1700s,  pre-Constitution state copyright laws, and federal copyright laws since 1790. 17 USC 501(b) grants standing to the legal or beneficial owner of one of the Section 106 or 106A rights to sue for infringement, thereby granting statutory standing. Owners of non-exclusive rights,  administrators/managers of rights who do not also own exclusive rights do not have standing. 

What about standing to sue for a violation of the DMCA's Section 1201 or 1202 provisions? Those rights are not copyright rights, they are sui generis despite being in title 17.  Section 1203(a) states: 

Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.

"Any person" is not defined and I have found nothing in the legislative history to guide one. Certainly the term encompasses more than copyright owners, but who? And, can non-copyright owners meet the Article III constitutional requirement of concrete harm? In TransUnion, Justice Thomas in dissent argued that breach of a duty owed under a federal statute suffices for Article III standing. To this, the majority replied: "No concrete harm, no standing." The Court had rejected a similar argument in the 2016 Spokeo case, and even in TransUnion, the dissent by Justices Kagan, Breyer and Sotomayor agreed with the concrete harm requirement. 

How does this shake out for DMCA claims? We have seen a number of recent decisions on this involving Section 1202, one from last Friday March 7, one from February 28, another from February 20, and an outlier on November 24. The March 7 opinion is from N.D. Cal. Judge Chhabria in Kadrey v. Meta. The first task was the historical one: 1202 claims are not copyright claims but are they nonetheless "closely related to a harm traditionally recognized as providing a basis for a lawsuit." Judge Chabbria avoided answering that directly by crediting, at the pleading stage, plaintiffs' argument that Meta had "intentionally removed CMI to conceal copyright infringement." This was deemed sufficient to survive a FRCP 12(b)(6) motion.

On February 28, Judge Orrick also of the N.D. Cal. issued an opinion in Viral DRM LLC v. Seven West Media, Ltd., 2025 WL 660250. Plaintiff alleged both a copyright infringement and a 1202 violation. As to the copyright violation, the court dismissed the claim for lack of standing because Plaintiff was merely an agent for the copyright owners, and not the owner of an exclusive right. He denied the motion as to the DMCA claim. Defendant argued the DMCA claim had to be dismissed because the copyright claim was dismissed, but Judge Orrick disagreed because the two are different rights, and because Section 1203 grants standing to "anyone" injured by a violation of section 1201 or 1202. The Article III standing issue was only briefly addressed, with the court holding that because Plaintiff was given the authority both to manage and enforce the copyright owners' Section 106 rights at the pleading stage this provided sufficient Article III harm. 

Courts in the SDNY have undertaken a longer look at that. In Raw Story Media, Inc. v. OpenAI, 2024 WL 4711729 (SDNY Nov. 24, 2024), a case involving OpenAI's alleged copying of thousands of articles for training models, Judge McMahon dismissed for lack of Article III standing. She disagreed that rights under Section 1202 are a "close historical or common-law analogue" to whatever injury Plaintiff was asserting for the removal of the CMI. She held they were not an analogue at all. Instead, she believed that the purpose of Section 1202 was to prevent fraud and misinformation about the origin of the works and to bring the US into compliance with the 1996 WIPO treaties that mandated member countries grant such rights. 

On February 20, Judge Rakoff also of the SDNY, provided the most thorough discussion of the issues yet, in Intercept Media, Inc. v. OpenAI, 2025 WL 556019. Delving into the technology, he noted that OpenAI had at least two algorithms that converted the scraped works into a format "digestible" to the AI: "Newspaper" and "Dragnet." "Newspaper" could retain CMI in the process. Dragnet could not. The complaint alleged that OpenAi chose not to have the CMI retained because it "desired consistency with the Dragnet extractions." 

Unlike Judge McMahon, Judge Rakoff found Section 1202 violations to "implicate the same kind of property-based harms traditionally actionable in copyright," rejecting defendants' argument that non-attribution is akin to droit moral and as such not analogous in the US to copyright law. Judge Rakoff thought it close enough. On whether a violation under Section 1202 had been pled as to OpenAI, Judge Rakoff noted the double scienter requirement: intentional removal, and, knowledge (or reasonable grounds to know) that the removal would induce, enable, facilitate, or conceal copyright infringement. While it was a close call, the court found that the existence of some downstream infringement by the "regurgitated" output sufficed as to OpenAI for 1202(b)(1). As to Microsoft, the claim was dismissed since there was no evidence Microsoft removed CMI. As to the 1202(b)(3) claims, they were dismissed as to both defendants since there was no evidence of distribution to third parties of the works. 

We are at an early stage in the Article III DMCA debates. Circuit guidance hopefully will be forthcoming.