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Dear Sir or Madam: I am counsel for the Recording Industry Association of America, Inc. (RIAA) and for its members. RIAA is a trade association whose member companies create, manufacture and distribute approximately ninety (90) percent of all legitimate sound recordings sold in the United States. An area of increasing concern for our members is the unauthorized duplication, distribution and performance of their sound recordings via the Internet and on-line environment.
We have learned that your site, referenced at the above URLs, is linking to a number of Internet sites that offer sound files for other users to download. Many MP3 sites offer full-length sound recordings for download without the permission of the copyright owner. For example, we have found that a number of our member companies? recordings are being illegally reproduced and distributed by MP3 sites linked to by your site, including songs by such artists as Madonna, the Goo Goo Dolls, No Doubt, Shania Twain, Will Smith, the Ace of Base, and Aphex Twin.
By linking to unauthorized sites or sound files, you may be directly contributing to and/or otherwise facilitating illegal activity. As such, you may be in violation of federal and/or state law and risk civil and/or criminal prosecution.
The purpose of this letter is to notify you of these activities, seek immediate assistance to stop continued unauthorized activities, and inform you of the possible consequences of engaging in or facilitating such activities without proper authorization from the sound recording copyright owners. Specifically, we request that you remove all links to unauthorized sites or sound files from your Internet site.
Federal copyright law or state statutory or common law grants our members the exclusive right to reproduce and distribute their sound recordings. This includes making copies of and distributing sound recordings in the online environment. Thus, among other activities, the following, if unauthorized by the copyright owner, may violate our members' rights under federal or state law:
1. making a copy of all or a portion of a sound recording onto a computer hard drive, server, or other hardware used in connection with a web site or other online forum,
2. distributing (via digital transmission) a copy or permitting users to download sound recordings from the site or other forum, and/or
3. digitally transmitting (via streaming audio) to users, at their request, a particular sound recording chosen by or on behalf of the recipient.
Liability for copyright infringement is not necessarily limited to the persons or entities who created (or encoded) the infringing sound file. In addition to being directly liable for infringing conduct occurring via the site, a linking site may be contributorily vicariously liable for facilitating copyright infringement occurring at the sites to which it links.
Contributory liability may be imposed where an entity knowingly and materially contributes to the infringing activity. See Fonovisa v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996) (holding a flea market liable for the infringing acts of its vendors). In Fonovisa, the court found that it would be difficult for the infringing activity to take place without the support services provided by the flea market, such as the provision of space, parking, utilities, advertising, plumbing and customers. The court concluded that providing the site and facilities for the infringing activity to take place was sufficient for contributory copyright infringement liability. In the case of a linking site, we believe that providing direct access to infringing works would constitute material contribution to infringing activity.
Vicarious liability may be imposed where an entity has the right and ability to control the activities of the direct infringer and also receives a financial benefit from the infringing activities. Liability may be imposed even if the entity is unaware of the infringing activities. In Religious Technology Center v. Netcom On-Line Communications Service, Inc. 907 F. Supp. 1361 (N.D. Cal. 1995), the court analyzed Netcom's ability to delete specific postings and its prior policing of its subscribers' use of the system. Though the court ultimately dismissed the vicarious liability claims, it concluded that there was a triable issue as to whether Netcom had sufficient right and ability to exercise control over the content of its system to satisfy that element of the vicarious liability standard. In the case of a linking site, we believe that providing direct access to infringing works would constitute the right and ability to control the infringing activity. In addition, we belie!
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that receiving revenue from banner advertisements would constitute a financial benefit.
Individuals who have infringed copyrighted sound recordings may be civilly liable to the copyright owner for damages and profits or statutory damages of up to $100,000 per copyright infringed, as well as reimbursement of reasonable attorneys' fees and costs of the suit to the owner of the copyright in issue. If you engage in the previously listed activities without the authorization of the copyright owner, you may be in violation of the law even if you do not receive any direct or indirect revenue from the infringing activity or specifically intend to violate our members' copyrights.
Unauthorized reproductions and distributions of copyrighted sound recordings over the Internet may also be subject to criminal penalties under federal copyright law, regardless of whether the site imposes an access charge. For first-time offenders, the penalties may include up to 3 years imprisonment, a fine of up to $250,000, or both.
You should understand that this letter constitutes notice to you that your site may be liable for facilitating the infringement of our members? recordings. This letter does not constitute a waiver of any right to recover damages incurred by virtue of any such unauthorized activities, and such rights as well as claims for other relief are expressly retained.
Please communicate with me at RIAA, 1330 Connecticut Avenue, N.W., Suite 300, Washington, D.C., 20036, Tel. (202) 775-0101, or e-mail [email protected], to discuss this notice. We await your response.
Very truly yours,
Jonathan Whitehead
Associate Anti-Piracy Counsel
RIAA