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 Chilling Effects Clearinghouse > DMCA Notices > Notices > RIAA Copyright Complaint to Google: Android Market (NoticeID 61677, http://chillingeffects.org/N/61677) Printer-friendly version

RIAA Copyright Complaint to Google: Android Market

February 25, 2011

 

Sender Information:
RIAA
Sent by:
[Private]


Washington DC, 20004, US

Recipient Information:

Google, Inc. [Android Market]


Mountain View, CA, 94043, USA


Sent via: email
Re: Infringing Applications for Android-based Devices

February 25, 2011

VIA ELECTRONIC MAIL


Google, Inc.

Attention: Google Legal Support

[redacted]

Mountain View, CA 94043

Re: Infringing Applications for Android-based Devices

To Whom It May Concern:

I am contacting you on behalf of the Recording Industry
Association of America, Inc. (RIAA) and its member record companies.
The RIAA is a trade association whose member companies create,
manufacture, and distribute the majority of all legitimate sound
recordings sold in the United States. RIAA members include Universal
Music Group, Sony Music Entertainment, Warner Music Group, and EMI Music
North America, and their affiliated record labels. Under penalty of
perjury, we submit that the RIAA is authorized to act on behalf of its
member companies in matters involving the infringement of their sound
recordings, including enforcing their copyrights and common law rights
on the Internet. We are writing to notify you of the extensive
copyright infringement of sound recordings that is being facilitated by
the applications noted in both the attachments and the Google document
entitled "RIAA" for Android-based devices which are distributed on the
Android Market site operated by Google.

The clear purpose of these applications is to facilitate the
unauthorized streaming and downloading of popular sound recordings, the
vast majority of which are owned or controlled by RIAA members. Under
the U.S. Copyright Act, those who distribute, reproduce, or digitally
transmit sound recordings without authorization and those who assist,
facilitate, or induce such actions by others are liable for copyright
infringement. By indexing, linking to, transmitting, retransmitting,
providing access to, and/or otherwise assisting users in streaming and
downloading infringing copies of sound recordings emanating from various
unauthorized sources on the Internet, these applications are violating
U.S. copyright law.

Additionally, it is important to note that these applications violate
the terms of your Android Market Content Policy for Developers which
prohibit applications that infringe on the intellectual property rights
of others. The failure of these applications to comply with this policy
constitutes a violation of your Android Market Developer Distribution
Agreement, section 4.11 Restricted Content, which requires that any
product distributed on the Android Market, must adhere to the Market
Content Policy for Developers.

By this letter, we ask that you immediately cease distribution of these
applications on the Android Market, and that you take steps to ensure
that their developers are not permitted to infringe upon the copyrights
of RIAA members by offering similar applications on Google operated
sites and services in the future. We have a good faith belief that this
activity is not authorized by the copyright owner, its agent, or the
law. We assert that the information in this notification is accurate,
based upon the data available to us.

The copyright infringement of RIAA member sound recordings made possible
by your distribution of these applications is obvious to anyone making
use of the applications, and undoubtedly will be readily apparent to you
upon review. While this letter constitutes notice of infringing
activities under the U.S. Copyright Act, it does not in any way
constitute a waiver of any right, remedy or action, including the right
to recover damages for the infringements referenced in this letter. All
such rights, remedies and actions are expressly reserved.

Please do not hesitate to contact me if you should have any questions.
You may reach me via e-mail at [redacted]@riaa.com, by telephone at [redacted], or by mail at RIAA, [redacted], [redacted], Washington, D.C. 20004.


Sincerely,

[redacted]

Vice President, Online Anti-Piracy

RIAA


[Attached images: mp3 and ringtone apps]


Title Creator Email PackageName Version Price Rating Category Notes Ads Ad provider
Adam Lambert Ringtone Kong Media [redacted]@live.cn com.ringtone.s.adamlambert 1.4 Free 4.3 Music & Audio Yes r.admob.com
Advanced MP3 Music Download Music Downloader vikymusic [redacted]@vikymusic.com music.search.download.mp36 1.0.0 Free 3.85 Entertainment Yes r.admob.com
Apocalyptica Ringtone Kong Media [redacted]@live.cn com.ringtone.s.apocalyptica 1.1 Free 5 Music & Audio Yes r.admob.com
Beyonce Ringtone Funny Land [redacted]@gmail.com com.beyq.ring 1.0.1 Free 5 Music & Audio No
Club Music Ringtones Sancron [redacted]@gmail.com com.sancron.sb.clubsb 3.1.3 Free 4.27 Personalization Yes r.admob.com
Cool Ringtones coolcode.org [redacted]@gmail.com org.coolcode.ringtones 1.3.5 Free 4.13 Media & Video Yes r.admob.com/GoogleAds
Damien Rice Ringtone Ribbel [redacted]@gmail.com com.ringtone.s.damienrice 1.1 Free 0 Entertainment Yes r.admob.com
Drake Ringtone Funny Land [redacted]@gmail.com com.drai.ring 1.0.1 Free 0 Music & Audio Yes r.admob.com
Free Music Download Jeromy.Y [redacted]@gmail.com com.cinderella.music 1.6 Free 4.66 Entertainment Yes r.admob.com
Free Ringtone Downloader AppDev Studio [redacted]@gmail.com com.tinyfast.freeringtonedownloader 1 Free 3 Music & Audio No
Justin Bieber Ringtone Kong Media [redacted]@live.cn com.ringtone.s.justinbieber 1.3 Free 4.22 Music & Audio Yes r.admob.com
Lady Gaga Ringtone Ribbel [redacted]@gmail.com com.ringtone.s.ladygaga 2 Free 4.3 Entertainment Yes r.admob.com
Lady Gaga Ringtone Funny Land [redacted]@gmail.com com.lagc.ring 1.0.1 Free 5 Music & Audio Yes r.admob.com
Lady Gaga Ringtone Music World [redacted]@gmail.com com.lrag.ringtone 1.01 Free 0 Music & Audio No
Lady Gaga专辑《The Remix》 Caiyun com.duomi.series.album11 1 Free 4 Media & Video No
Lil Wayne Ringtone Funny Land [redacted]@gmail.com com.lily.ring 1.0.1 Free 5 Music & Audio Yes r.admob.com
Mariah Carey ringtone Music Girl [redacted]@gmail.com com.ringtone.nmariahcarey 1.1.002 Free 4.67 Entertainment No
Mp3 Music Music Base [redacted]@gmail.com com.ringtone.Music25 1.4 Free 4.39 Shopping Yes r.admob.com/GoogleAds
MP3 Music Search Wilson.B [redacted]@gmail.com com.code.mse.music 1.07 Free 0 Entertainment Yes androidsdk.ads.mp.mydas.mobi
Mp3 Music Search and Download Andromusic [redacted]@gmail.com com.madvil.mt3 3.0beta2 Free 4.47 Music & Audio No
Mp3 Music Searcher Andromusic [redacted]@gmail.com com.madvil.ms2 3.0beta2 Free 4.2 Music & Audio No
MP3 Wizard - MP3 Music Downoad MP3 Music Search Team world.people.play@gmail.com com.lisa.mobile.music 1.21 Free 2.86 Media & Video Yes r.admob.com/GoogleAds
Music Mate 611314 [redacted]@gmail.com com.mp3.dwonloader.ringtonemaker.musicradio.versio 1.0.2 Free 3.18 Music & Audio Yes d.wiyun.com
Music Search Advanced MP3 Music Search Team [redacted]@gmail.com com.code.search.musictao 1.22 Free 3.11 Music & Audio Yes androidsdk.ads.mp.mydas.mobi
Nelly Ringtone DragonLib [redacted]@gmail.com me.ring.nyli 1.01 Free 5 Entertainment No
Real music ringtones 01 EWARKXEE [redacted]@gmail.com com.xee.ringtone01 1 Free 4.13 Media & Video No
RingBow - Free Ringtones! Top Ringtone [redacted]@gmail.com mem.ringbow.ringtone 1.12 Free 2.66 Music & Audio Yes r.admob.com/GoogleAds
ringtone movie music [redacted]@gmail.com com.games.rings 1 Free 4.66 Productivity No
Ringtone KissSoft [redacted]@gmail.com com.kiss.soundring 1.0.7 Free 3.8 Entertainment No
Ringtone Justin Bieber Hot Ringtone [redacted]@gmail.com com.demo.android.JustinBieber 3 Free 4.26 Music & Audio Yes GoogleAds
Ringtone Maroon 5 Hot Ringtone [redacted]@gmail.com com.demo.android.Maroon5 2.6 Free 3.93 Media & Video Yes GoogleAds
Ringtone Mp3 Music Base [redacted]@gmail.com com.ringtone.Music23 1.4 Free 4.48 Media & Video Yes GoogleAds
Ringtone Music Music Base [redacted]@gmail.com com.ringtone.Music24 1.4 Free 4.54 Lifestyle Yes GoogleAds
Ringtone Player movie music [redacted]@gmail.com com.ringtone.Music19 1.3.13 Free 4.59 Tools Yes GoogleAds
Ringtone Player Music Base [redacted]@gmail.com com.ringtone.Music29 1.4 Free 4.58 Finance No

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FAQ: Questions and Answers

[back to notice text]


Question: Why does a search engine get DMCA takedown notices for materials in its search listings?

Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(d), a safe-harbor for providers of "information location tools." These safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by users' materials it links to, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA's takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.

Question: What does a service provider have to do in order to qualify for safe harbor protection?

Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]

Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].


Question: What are the provisions of 17 U.S.C. Section 512(c)(3) & 512(d)(3)?

Answer: Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512.

Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing.


Question: Does a service provider have to follow the safe harbor procedures?

Answer: No. An ISP may choose not to follow the DMCA takedown process, and do without the safe harbor. If it would not be liable under pre-DMCA copyright law (for example, because it is not contributorily or vicariously liable, or because there is no underlying copyright infringement), it can still raise those same defenses if it is sued.


Question: How do I file a DMCA counter-notice?

Answer: If you believe your material was removed because of mistake or misidentification, you can file a "counter notification" asking the service provider to put it back up. Chilling Effects offers a form to build your own counter-notice.


For more information on the DMCA Safe Harbors, see the FAQs on DMCA Safe Harbor. For more information on Copyright and defenses to copyright infringement, see Copyright.


[back to notice text]


Question: What is contributory infringement?

Answer: The other form of indirect infringement, contributory infringement, requires (1) knowledge of the infringing activity and (2) a material contribution -- actual assistance or inducement -- to the alleged piracy.

Posting access codes from authorized copies of software, serial numbers, or other tools to assist in accessing such software may subject you to liability. Providing a forum for uploading and downloading any copyrighted file or cracker utility may also be contributory infringement. Even though you may not actually make software directly available on your site, providing assistance (or supporting a forum in which others may provide assistance) in locating unauthorized copies of software, links to download sites, server space, or support for sites that do the above may contributorily infringe.

To succeed on a contributory infringement claim, the copyright owner must show that the webmaster or service provider actually knew or should have known of the infringing activity.


[back to notice text]


Question: What is vicarious liability?

Answer: Vicarious liability, a form of indirect copyright infringement, is found where an operator has (1) the right and ability to control users and (2) a direct financial benefit from allowing their acts of piracy. User agreements or Acceptable Use Policies may be evidence of an operator's authority over users. The financial benefit may include a subscription fee, advertising revenues, or even a bartered exchange for other copyrighted. Under the doctrine of vicarious liability, you may be found liable even if you do not have specific knowledge of infringing acts occurring on your site.


[back to notice text]


Question: Is all copying piracy?

Answer: No. Copyright gives the owner exclusive rights to reproduce, adapt, publicly distribute, perform and display their work. Nonetheless, the law allows "fair use" of copyrighted material. Fair use permits, in certain circumstances, the use or copying of all or a portion of a copyrighted work without the permission of the owner. Copyrighted works may be used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. To decide whether a use is "fair use" or not, courts consider, in part:
(1) the purpose and character of the use (including whether such use is of a commercial nature or is for nonprofit educational purposes);
(2) the nature of the copyrighted work (giving creative works more protection than factual works);
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (including size and quality- i.e. Does the portion represent the "heart" of the work); and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Courts balance these factors, placing an emphasis on the fourth, however rulings have been unpredictable. Parody may be protected by fair use where the user is actually making a comment on or criticism of the copyrighted material, even if a profit is made from the use. Still, distributing copyrighted software will rarely be fair use because people will use those copies instead of buying the software from the legitimate vendor.


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