Tech Law Journal Daily E-Mail Alert
August 20, 2002, 9:00 AM ET, Alert No. 495.
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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 ... 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.
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.
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.
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.
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.
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.
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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