Unauthorized Distribution of Copyrighted Work: Korn -- Chilling Effects Clearinghouse

As you may know, the musical group Korn is currently subject to a recording agreement with Sony Music ("Sony") pursuant to which Sony is entitled to Korn's exclusive worldwide recording services and the exclusive, worldwide right to distribute all audio and audiovisual recordings recorded during the term of that agreement through any and all media, including distribution via the Internet.

We have received information that an individual located at [IP Address] on your network has offered downloads of the above-mentioned work(s) at the noted date and time through your service. No one is authorized to perform, exhibit, reproduce, transmit, or otherwise distribute the above-mentioned work without the express written permission of Sony., which permission Sony has not granted to the user located at [IP Address].

The attached documentation specifies the account or username offering this infringing material, the name and size of the file being offered, the number of repeat violations recorded at this specific location, as well as any available identifying information.

We are asking for your immediate assistance in stopping this unauthorized activity. Specifically, we request that you remove the site from your system or (in the case of a peer-to-peer service) disable access to this site; or at a minimum delete the infringing files that have been downloaded.

In addition, we ask that you inform the individual(s) involved of the illegality of his or her conduct and confirm with us, in writing, that this activity has ceased.

You should understand that under the Digital Millennium Copyright Act, if you ignore this notice, your company/institution may be liable for any resulting infringement.

As owner of the exclusive rights to the copyrighted material at issue in this notice, we hereby state, that we have a good faith belief that use of the material in the manner complained of is not authorized by Sony, its respective agents, or the law.

Also, we hereby state that we believe the information in this notification is accurate, and, under penalty of perjury, that we are is authorized to act on behalf of Sony.

The foregoing is not a full recitation of the facts and law pertaining to this matter, and all of our rights and remedies, including the right to recover monetary damages, are expressly retained.

We appreciate your assistance and thank you for your cooperation in this matter. Please contact us at anti-piracy@sonymusic.com should you have any questions.

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Infringment Detail:
Infringing Work: Korn
Filename: Korn - 06 - No Horn - music-madness (1).mp3
First Found: 4/23/2002 2:52:55 AM EST
Last Found: 4/23/2002 2:52:55 AM EST
Filesize: 2,821k
IP Address: [IP Address]
Network: KaZaA
Protocol: FastTrack
Username: [Username]

FAQ: Questions and Answers

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Question: What are the counter-notice and put-back procedures?

Answer: In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

A proper counter-notice must contain the following information:

The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)]
Identification of the material and its location before removal [512(g)(3)(B)]
A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]

If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the person harmed for any damages that resulted from the improper removal of the material. [512(f)]

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Question: What is the purpose of copyright law?

Answer: Copyright law provides an incentive to create software, music, literature and other works by ensuring that the creator will be able to reap the financial benefits of the work.

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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.

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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.

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Question: What are the notice and takedown procedures for web sites?

Answer: In order to have an allegedly infringing web site removed from a service provider's network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information:

The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]
The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)].
Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].
A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.

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Question: What are the DMCA Safe Harbor Provisions?

Answer: In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect service providers on the Internet from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable.

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Question: What are the penalties for copyright infringement, such as making infringing copies of software?

Answer: In a civil suit, an infringer may be liable for a copyright owner's actual damages plus any profits made from the infringement. Alternatively, the copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. (17 U.S.C. 504)

Violation of copyright law is also considered a federal crime when done willfully with an intent to profit. Criminal penalties include up to ten years imprisonment depending on the nature of the violation. (No Electronic Theft Act, 18 U.S.C. 2319)

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Question: If I am accused of "piracy," what does this mean?

Answer: "Piracy" is slang for copyright infringment, usually used to describe the unlawful copying of software, videogames, movies or MP3s. Copyright law gives a creator of software, music, literature and other works a limited monopoly to reproduce or distribute in the created work. If you are accused of piracy, then someone is claiming that you have violated their copyright by copying part or all of their work without authorization, or have enabled other people to make such copies.

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Question: Does a copyright owner have to specify the exact materials it alleges are infringing?

Answer: Proper notice under the safe harbor provisions requires the copyright owners to specifically identify the alleged infringing materials, or if the service provider is an "information location tool" such as a search engine, to specifically identify the links to the alleged infringing materials. [512(c)(3)(iii)], [512(d)(3)]. The provisions also require the copyright owners to identify the copyrighted work, or a representative list of the copyrighted works, that is claimed to be infringed. [512(c)(3)(A)(ii)]. Rather than simply sending a letter to the service provider that claims that infringing material exists on their system, these qualifications ensure that service providers are given a reasonable amount of information to locate the infringing materials and to effectively police their networks. [512(c)(3)(A)(iii)], [512(d)(3)].

However, in the recent case of ALS Scan, Inc. v. Remarq Communities, Inc., the court found that the copyright owner did not have to point out all of the infringing material, but only substantially all of the material. The relaxation of this specificity requirement shifts the burden of identifying the material to the service provider, raising the question of the extent to which a service provider must search through its system. OSP customers should note that this situation might encourage OSP's to err on the side of removing allegedly infringing material.

Topic maintained by Stanford Center for Internet & Society