Andersen Plaintiffs Strategically Dismiss § 1202(b) Claims Pending Interlocutory Appeal In Github Case

In a strategic move to preserve their right to seek reconsideration of previously dismissed DMCA § 1202(b) claims, the plaintiffs in Andersen v. Stability AI have voluntarily dismissed with prejudice all DMCA claims. The opportunity to seek reconsideration of the dismissed claims will come if a reversal occurs in the Doe 1 v. Github interlocutory appeal. We covered more of the decisions in the Github case in this prior post.

The Court in Andersen recently dismissed the plaintiffs DMCA § 1202(b) claims when it adopted the Github court's "identicality" requirement for DMCA § 1202(b) claims. This requirement posits that for a DMCA copyright management information (CMI) removal claim to be valid, there must be "identicality" between the original work and the copy from which CMI has been removed. Other district courts addressing similar issues have reached a different result.¹ The Ninth Circuit Court of Appeals will address the issue in the Github interlocutory appeal.