Music Companies Sue Internet Backbone Companies to Block Access to Pirate Site in PRChina

August 15, 2002. 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:

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.