| Music Companies Sue
Internet Backbone Companies to Block Access to Pirate Site in
PRChina |
8/15. Thirteen music companies filed a complaint in U.S. District Court (SDNY)
against four Internet backbone companies seeking an order
requiring the defendants to block access to the Internet
protocol addresses assigned to the Listen4ever servers in
the People's Republic of China. The complaint, which does not
name Listen4ever as a defendant, alleges that Listen4ever
operates a web site that engages in infringement of the music
companies' copyrighted sound recording by making them
available for download. Plaintiffs also filed a motion for
preliminary injunction.
The Recording Industry
Association of America (RIAA) is a group that represents
the plaintiff music companies. However, it is not a named
plaintiff. The RIAA published in its web site one huge PDF
file that includes various documents, including the
Complaint, Plaintiffs' Memorandum of Law in Support of Their
Motion for Preliminary Injunction, and declarations of
witnesses and experts.
The plaintiffs are Arista Records, Inc., Atlantic Recording
Corp., Capitol Records, Inc., Electra Entertainment Group,
Inc., Interscope Records, J Records, Motown Record Company,
L.P., Priority Records LLC, The RCA Records Label, Sony Music
Entertainment Inc., UMG Recordings, Inc., Virgin Records
America, Inc., and Warner Bros. Records Inc.
The defendants are AT&T Broadband, Cable and Wireless USA,
Sprint Corporation -- Advanced Network Systems, and UUNet
Technologies, Inc. The operator of the infringing web site is
not named as a defendant.
The one count complaint seeks only injunctive relief, pursuant
to Section 512(j)(1)(B)(ii) of the Digital Millennium
Copyright Act (DMCA), which section is codified at 17 U.S.C.
§ 512. The complaint requests "That the Court order
Defendants to block Internet traffic to and from the website
... all the pages affiliated with it, and any substantially
similar successor website".
The Plaintiffs state in the memorandum in support of their
motion for preliminary injunction that "This action
arises out of the blatant copyright infringement of
Listen4ever.com ... which built, maintains, and controls a
website ... that it knowingly, willfully, and intentionally
designed to engage in the wholesale infringement of
Plaintiffs' sound records. With functions such as the ability
to download entire sound recording albums directly from
Listen4ever's central server, the Listen4ever Site makes
infringing music files more readily available than Napster,
which currently is subject to a preliminary injunction as a
result of its contributory and vicarious copyright
infringement."
Plaintiffs continue that "In an attempt to shield itself
from the practical reach of United States law, Listen4ever
uses offshore servers located in the People's Republic of
China to host the website through which its infringing
activities occur. Listen4ever, however, provides its
infringing services to the majority of Internet users in the
United States via the backbone routers owned and operated by
Defendants. In enacting the Digital Millennium Copyright Act
("DMCA"), Congress anticipated that infringers might
attempt to move offshore to avoid and delay service of process
and enforcement of U.S. copyright law. Thus, it enacted §
512(j) of the DMCA, which permits a copyright owner to seek
injunctive relief (and solely injunctive relief) to require
Internet Service Providers ("ISPs") to block access
to such sites. This is exactly the situation here and the
limited relief plaintiffs are seeking."
The complaint and memorandum contain little information about
the operators of the listen4ever web site. The memorandum
states that "The Listen4ever Site is hosted on servers
located in the People's Republic of China. ... By employing an
easily used, web-based system, the Listen4ever Site enables
users to connect to its central servers and encourages and
enables them to download music from a centralized location
containing thousands of such files, thereby making unlawful
copies of any and as many recordings they choose."
It adds that "Listen4ever has attempted to avoid the
ambit of United States copyright law by using host servers
located in the People's Republic of China. ... the Listen4ever
Site's operators seem to be based there as well."
It also states that "the domain name appears to have been
registered to an individual in Tianjin, China." Finally,
it states that the web site "uses a U.S. top level
domain, .com, is written entirely in English, appears to
target an American audience by focusing on United States
copyrighted works, and does not appear to feature Chinese
music."
Plaintiffs allege that "Listen4ever is liable for direct
copyright infringement by making an unauthorized copy of the
recording on its central servers in violation of §
106(1) of the Copyright Act and by unlawfully distributing
these copies to users in violation of 106(3). ... In addition,
Listen4ever is liable for contributory copyright infringement
by knowingly inducing, causing and materially contributing to
the infringing conduct of Internet users by maintaining a
website which allows the users to unlawfully copy and
distribute Plaintiffs' copyrighted sound recordings."
The defendant Internet backbone companies are not alleged to
have infringed plaintiffs copyrights. Rather, the plaintiffs
state that "Defendants' backbone routing services are the
primary means by which the Listen4ever Site can reach and be
reached by Internet users in the United States. ... Defendants
indicated that they were unwilling to block communications to
and from the Listen4ever Site traveling over their networks
simply at the request of the RIAA, but would comply with a
Court-ordered injunction."
The plaintiffs assert that this entitles them to an injunction
ordering defendants to block access to listen4ever's IP
addresses.
17
U.S.C. § 512 provides, in relevant part, as follows:
Sec. 512. - Limitations on liability relating to material
online
...
(j) Injunctions. The following rules shall apply in the case
of any application for an injunction under section
502 against a service provider that is not subject to
monetary remedies under this section:
(1) Scope of relief.
...
(B) If the service provider qualifies for the limitation on
remedies described in subsection (a), the court may only grant
injunctive relief in one or both of the following forms:
...
(ii) An order restraining the service provider from providing
access, by taking reasonable steps specified in the order to
block access, to a specific, identified, online location
outside the United States.
Plaintiffs are represented by the law firm of O'Melveny & Myers. The
pleadings list Dale
Cendali and Johanna
Schmitt of firm's New York City office as counsel of
record. Cendali is the chairwoman of the firm's Copyright,
Trademark and Internet Practice Group. |
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| CDT Writes NTIA Regarding
Reform of ICANN |
8/19. The Center for Democracy
and Technology (CDT) sent a letter
to the National Information
and Technology Administration (NTIA) regarding
restructuring of the Internet
Corporation for Assigned Names and Numbers (ICANN).
The letter urges the NTIA "to insert a limited set of new
requirements into any renewal of ICANN's Memorandum of
Understanding with the Department of Commerce calling for
increased accountability and meaningful checks on ICANN's
powers."
The letter continues that "Although the reform package
approved in Bucharest improves on previous drafts, it lacks
adequate provisions to protect the public's interest in
ICANN's activities and establish meaningful constraints on the
ICANN Board's future authority. With the Department's MOU with
ICANN set to expire on September 30, the present opportunity
for leadership should not be missed."
The CDT stated, among other things, that "This should
include an explicit enumeration of ICANN's powers and a strong
prohibition of any activities that would deny individuals and
organizations basic due process."
The CDT also seeks an "Independent Review Panel, capable
of scrutinizing Board and staff actions for compliance with
critical documents such as the ICANN Bylaws".
The CDT letter was signed by Alan Davidson,
Associate Director, and Rob Courtney,
Policy Analyst. |
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| People and Appointments |
8/19. Richard Notebaert was named Chairman of the Federal Communications Commission's
(FCC) Network Reliability and
Interoperability Council (NRIC). Notebaert is the Ch/CEO
of Qwest Communications.
Joseph Nacchio, a former Ch/CEO of Qwest, previously held the
position. The purpose of the NRIC is to develop
recommendations for the FCC and the telecommunications
industry regarding reliability, security, interoperability and
interconnectivity of, and accessibility to, public
telecommunications networks and the Internet. See, FCC
release [PDF].
8/19. U.S. Trade Representative
(USTR) Robert
Zoellick named Harry Clark Counselor to the Office
of the USTR. See, USTR
release.
8/19. Robert Jordan was named Assistant Director of the
Federal Bureau of Investigation's
(FBI) Office of Professional Responsibility. He has worked for
the FBI since 1980. He replaces Michael DeFeo, who is
leaving the country. See, FBI
release. |
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| More News |
8/19. Federal Communications
Commission (FCC) Commissioner Michael Copps
released a statement
[PDF] regarding an obscene radio broadcast in New York City.
He wrote that "Congress passed laws limiting the
broadcast of ``obscene, indecent or profane´´ language and
charged the FCC with the enforcement of these laws. The FCC
has a responsibility to ensure that the indecency laws of the
United States are being vigorously enforced. I take this
responsibility with the utmost seriousness. If these
complaints and press accounts prove true, this Commission
should consider the strongest enforcement action possible
against this station, up to and including revocation of the
station's license."
8/19. The Federal Election
Commission (FEC) announced that it has fined several
committees for civil violations of federal election laws. It
fined VenturePAC $750 for filing a report late in 2001.
VenturePAC is the political action committee sponsored by the National Venture Capital
Association (NVCA). According to Political Money Online,
VenturePAC has $644,581 in total receipts so far for the 2002
election cycle. The FEC also fined the AT&T Political
Action Committee $1,200 for filing a report late in 2001. The
AT&T PAC has $728,494 in total receipts so far in this
election cycle. See, FEC release. |
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| Wednesday, August 21 |
| Deadline for those persons requesting to testify at the Federal Election Commission's (FEC)
August 28-29 hearing to submit comments to the FEC regarding
its second Notice
of Proposed Rulemaking (NPRM) [67 pages in MS Word]
regarding the Bipartisan Campaign Reform Act of 2002 (BCRA),
the recently enacted campaign finance reform legislation. This
NPRM pertains to "electioneering communications".
The proposed rules would exempt webcasts. See also, FEC release. |
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| Thursday, August 22 |
RESCHEDULED FOR SEPTEMBER 5.
10:00 AM - 12:00 NOON. The Federal Communications Commission's
(FCC) Advisory Committee for the 2003 World Radiocommunication
Conference (WRC-03 Advisory Committee) will hold a meeting.
See, notice
in Federal Register, July 19, 2002, Vol. 67, No. 139, at Page
47549. See, notice
in Federal Register, August 2, 2002, Vol. 67, No. 149, at
Pages 50437 - 50438, rescheduling the meeting. |
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| Tuesday, August 27 |
10:00 AM - 12:00 NOON. The State Department's International
Telecommunication Advisory Committee (ITAC) will meet. See, notice
in Federal Register, July 23, 2002, Vol. 67, No. 141, at Page
48241. Location: Room 1105, State Department.
TIME? The National Academy of Sciences (NAS) will host a one
half day seminar titled "Review of the Patent Office's
21st Century Strategic Plan". Location: NAS, Lecture
Room, 500 Fifth Street, NW.
Deadline to submit comments to the National Telecommunications
and Information Administration (NTIA) in response to its
request for comments on the effectiveness of Internet blocking
and filtering technologies. § 1703 of the Children's
Internet Protection Act (CIPA) [PDF] directs NTIA to
initiate a notice and comment proceeding to evaluate whether
currently available Internet blocking or filtering technology
protection measures and Internet safety policies adequately
address the needs of educational institutions. It also directs
NTIA to make recommendations to Congress on how to foster the
development of technology protection measures that meet these
needs. See, notice
in the Federal Register. |
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