• by Ray Schultz , Columnist, April 22, 2025

Does a copied work have to be identical to the original to constitute copyright infringement? A coalition of groups has filed an Amicus brief, arguing that this should not be the case.  

The filing, which was submitted last week to the U.S. Court of Appeals for the Ninth Circuit, concerns the case of Doe vs. GitHub. 

The groups urged the Court of Appeals to reverse its prior ruling and reject GitHub’s contention that Section 1202(b)of the Digital Millennium Copyright Act (DMCA) establishes liability for the removal of copyright management information (CMI) only if the copied work is identical to the original, the News/Media Alliance states.

Infringement of a copyright is “not limited to situations in which a user creates an identical copy of the original work,” they argue in the brief. “Rather, it is fundamental that infringement can be established through a showing that as relevant here0 the secondary work is substantially similar to the original.” 

When enacting these measures, “Congress chose not to impose an identicality requirement," they add. "There is no reference to such a requirement in the statute or accompanying legislative reports. 

The law would seem to allow creation of derivative works based on the copyrighted work. But, by definition, “derivative works are not identical to the works upon which they are based.” And it is not a concept that reporters can hide behind. 

Moreover, the requirement is unsupported by case law and would stand in violation to U.S. implementation of the WIPO Internet Treaties, the filers argue. 

This will not be an easy one to judge. We will see if the concept of “identicality” has legs under the law.

The brief was filed by the News/Media Alliance, the Association of American Publishers, the Authors’ Guild, and the International Association of Scientific, Technical, and Medical Publishers.