UNITED STATES
DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
UMG RECORDINGS, INC., SONY MUSIC ENTERTAINMENT INC.,
WARNER BROS. RECORDS INC., ARISTA RECORDS INC., ATLANTIC
RECORDING CORPORATION, BMG MUSIC d/b/a THE RCA RECORDS
LABEL, CAPITOL RECORDS, INC., ELEKTRA ENTERTAINMENT
GROUP, INC., INTERSCOPE RECORDS, and SIRE RECORDS GROUP
INC.,
Plaintiffs,
vs.
MP3.COM, INC.,
Defendant..
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Case No.: 00 Civ. 0472 (JSR)
COMPLAINT FOR
COPYRIGHT
INFRINGEMENT
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Plaintiffs, by their counsel, allege as follows:
INTRODUCTION
1. This litigation seeks relief against
an ongoing infringement of the copyrights in the sound recordings on
some 45,000 audio CDs, most of which copyrights are owned by the plaintiff
recording companies. The defendant made unauthorized copies of those
45,000 audio CDs, loaded the unauthorized copies onto file servers,
and is permitting users of its Internet service to listen to and download
those unauthorized copies. Despite the plaintiffs' requests, the defendant
has refused to discontinue this massive ongoing infringement. The plaintiffs
seek declaratory and injunctive relief, and statutory damages for willful
copyright infringement.
NATURE OF THE CASE
2. Plaintiffs bring this action seeking
declaratory, injunctive and monetary relief against MP3.com, Inc. ("MP3.com"),
a publicly-held company which operates a commercial Internet site at
http://www.mp3.com. At this site, MP3.com recently began offering two
new "breakthrough products" through its "upgraded" My.MP3.com service
(http://my.mp3.com) ("My.MP3"). In particular, My.MP3 now allows a user
to listen, via the Internet, to the tracks of almost any commercial
audio CD of his or her choosing, and to download digital copies of those
CD tracks.
3. In order to create and offer this
"upgraded" service, MP3.com copied the tracks from some 45,000 commercial
CDs onto the computer servers that operate the MP3.com site and the
My.MP3 service. Plaintiffs are among the leading manufacturers of phonorecords
in the United States and own the copyrights in most of the hundreds
of thousands of copyrighted sound recordings contained on the CDs that
MP3.com copied. At no time have plaintiffs ever authorized MP3.com to
make any reproductions of their copyrighted works or to offer the My.MP3
service.
4. To receive access to the tracks
from a commercial CD over the My.MP3 service, a user need only do one
of two things: First, the user can place an order for the commercial
CD from one of several online CD retailers cooperating with MP3.com
("Instant Listening Service"). Second, the user can insert a commercial
CD (or a copy, authorized or unauthorized, of a commercial CD) into
his or her computer CD-ROM drive for a few seconds ("Beam-it"). Once
a user has either placed the order or briefly inserted the CD, My.MP3
gives him or her permanent access to listen to or download the infringing
reproductions of the CD's tracks from the defendant's server, on demand,
at any place and through any device that can access the MP3.com site
through the Internet. The My.MP3 service is further described in pages
from the MP3.com Web site attached hereto as Appendix A.
5. Under Section 106 of the Copyright
Act of 1976, 17 U.S.C. § 101 et seq. (the "Copyright Act"), plaintiffs
have the exclusive right, among other things, to make reproductions
of their copyrighted sound recordings in all forms. This is one of the
most sacrosanct rights afforded copyright owners.
6. Plaintiffs seek a declaration that
MP3.com's unauthorized copying of plaintiffs' copyrighted sound recordings
onto MP3.com's computer servers willfully infringes plaintiffs; copyrights
in violation of the Copyright Act. Plaintiffs further seek injunctive
relief prohibiting MP3.com from operating My.MP3 or any other service
that uses any infringing reproduction of plaintiffs' copyrighted sound
recordings. Plaintiffs pray also for statutory damages for willful copyright
infringement in the amount specified in Section 504 of the Copyright
Act.
JURISDICTION AND VENUE
7. This is a civil action seeking
declaratory, injunctive and monetary relief for infringement under the
copyright laws of the United States (17 U.S.C. § 101 et seq.).
The Court has jurisdiction over the subject matter of this action under
28 U.S.C. § 1338 (a).
8. This Court has personal jurisdiction
over the defendant because defendant offers a service to residents of
the State and this District which harms the copyrights owned by residents
of this State and this District, and defendant is otherwise doing business
in this State and this District.
9. Venue is properly laid in this
District pursuant to 28 U.S.C. § § 1391 (b) and (c), and 1400 (a).
PARTIES
10. Plaintiff UMG RECORDINGS, INC.
is a corporation duly organized and existing under the laws of the State
of California, with its principal place of business in Los Angeles County,
California, and a place of business in New York, New York.
11. Plaintiff SONY MUSIC ENTERTAINMENT
INC. is a cooperation duly organized and existing under the laws of
the State of Delaware, with its principal place of business in New York,
New York.
12. Plaintiff WARNER BROS. RECORDS
INC. is a corporation duly organized and existing under the laws of
the State of Delaware, with its principal place of business in Los Angeles,
California, which is licensed to do business in New York.
13. Plaintiff ARISTA RECORDS INC.
is a corporation duly organized and existing under the laws of the State
of Delaware, with its principal place of business in New York, New York.
14. Plaintiff ATLANTIC RECORDING CORPORATION
is corporation duly organized and existing under the laws of the State
of Delaware, with its principal place of business in New York, New York.
15. Plaintiff BMG MUSIC d/b/a THE
RCA RECORDS LABEL is a New York general partnership with its principal
place of business in New York.
16. Plaintiff CAPITOL RECORDS, INC.
is a corporation duly organized and existing under the laws of the State
of Delaware, with a place of business in New York, New York.
17. Plaintiff ELEKTRA ENTERTAINMENT
GROUP, INC. is a corporation duly organized and existing under the laws
of the State of Delaware, with its principal place of business in New
York, New York.
18. Plaintiff INTERSCOPE RECORDS is
a California general partnership with its principal place in Los Angeles
County, California, which is licensed to do business in New York.
19. Plaintiff SIRE RECORDS GROUP INC.
is a corporation duly organized and existing under the laws of the State
of Delaware, with its principal place of business in New York, New York.
20. Plaintiffs are engaged in the
business of producing sound recordings, and manufacturing, distributing,
selling and/or licensing the distribution and sale of their sound recordings
on phonorecords (as defined in 17 U.S.C. § 101), or arranging to do
so in the United States. The most common form of phonorecord is an audio
CD, but the term "phonorecord" includes any object that contains a sound
recording, such as a computer audio file, analog cassette tape, vinyl
album, or digital audio tape. Plaintiffs are among the leading manufacturers
of phonorecords in the United States. The names and reputations of plaintiffs
as manufacturers of phonorecords of high artistic and technical quality
are widely and favorably known in the State of New York and throughout
the United States and the world.
21. Defendant MP3.com, upon information
and belief, is a corporation organized under the laws of the State of
Delaware, with its principal place of business in the State of California.
Defendant operates its business through a commercial Web site (http://www.mp3.com)
that provides, among other things, information about music and the use
of the "mp3" digital audio format, digital downloads of music, and the
My.MP3 interactive service. Defendant's My.MP3 service is targeted to
and used by residents of this State and this District, and infringes
copyrights owned by residents of this State and this District.
PLAINTIFFS' COPYRIGHTED SOUND RECORDINGS
22. "Sound Recordings" are defined
by the Copyright Act to be "works that result from the fixation of a
series of musical, spoken or other sounds, but not including the sounds
accompanying a motion picture or other audio visual work...," 17 U.S.C.
§ 101, that is, versions or renditions of musical compositions. Sound
recording are protected by copyright, separate from the underlying musical
compositions.
23. Plaintiffs are the United States
copyright owners or the owners of exclusive rights under copyright with
respect to certain copyrighted sound recording embodied in their phonorecords,
including but not limited to those listed in Appendix B and incorporated
by reference herein (hereinafter "Copyrighted Recording"). Each plaintiff
has applied for and/or received Certificates of Copyright Registration
from the Register of Copyrights for its Copyrighted Recordings. Under
Section 106 of the Copyright Act, each plaintiff has the exclusive right,
among other things, "to reproduce the [Copyrighted Recordings] in ...
phonorecords."
24. Plaintiffs have invested and continue
to invest substantial sums of money, as well as time, effort, and creative
talent, to discover and develop recording artists, and to create, manufacture,
advertise, promote, sell, and license phonorecords embodying the performances
of their exclusive recording artists. In order to create such phonorecords,
plaintiffs make payments to these recording artists, other musicians,
various trust funds established for musicians' benefit, producers, technicians,
and other staff personnel, as well as various other payments. Plaintiffs
and their recording artists are compensated for their creative efforts
and monetary investments largely from the sale of phonorecords to the
public and from license fees received from the reproduction, distribution,
digital performance, or other exploitation of such phonorecords. Absent
such compensation, profits and motivation are siphoned away from artists
and the record companies that record, manufacture, promote, and distribute
those works. The pool of resources available for finding and promoting
new artists shrinks, and sound quality and recording integrity are diluted
and corrupted. The ultimate result is that the public's access to a
wide variety of high quality musical recordings is sharply curtailed.
DEFENDANT'S INFRINGING "MY.MP3" SERVICE
25. On or about January 12, 2000,
Defendant introduced its "upgraded" My.MP3 service to the public. The
press release announcing the revised My.MP3 explained that: "[t]he new
service, currently free to consumers, contains two breakthrough products--Instant
Listening ServiceTM and Beam-itTM--that
allow consumers to store, customize and listen to their CDs from anywhere,
anytime using the open portals of web-enabled devices."
26. In order to create and offer this
service, defendant copied every track from 45,000 commercial audio CDs
onto its computer servers. All or virtually all of these audio CDs are
marked as copyrighted and contain explicit notices prohibiting unauthorized
copying. When users access sound recordings though My.MP3, it is these
infringing reproductions that are accessed. Included among these infringing
reproductions are copies of thousands of copyrighted sound recordings
owned by plaintiffs, none of whom has authorized defendant to make any
such reproductions.
27. Through My.MP3, a user can get
access to any of the infringing reproductions made by defendant that
he or she chooses, listen to a performance made from those infringing
reproductions through any device, such as a computer, that can access
MP3.com's Web site, and download copies of those infringing reproductions.
The user obtains permanent access to the infringing reproductions by
placing an order for or confirming to defendant that he is in the possession
of an audio CD (or a copy, authorized or unauthorized, of an audio CD)
containing those sound recordings.
28. The user does not and cannot copy
his or her own CD onto the My.MP3 computer servers. The My.MP3 service
is built on and only grants access to the infringing reproductions made
by defendant.
29. Upon information and belief, My.MP3
is currently being offered free of charge to users. Defendant has indicated
that it intends to sell subscriptions to the service in the future.
The My.MP3 service contains advertisements on its Web pages that a user
sees when he or she listens to or downloads music via My.MP3.
30. Defendant has been advised by
representatives of the plaintiffs that defendant's unauthorized reproduction
of commercial CDs violates the Copyright Act, and defendant has been
urged to discontinue its infringing activities. Defendant has refused
to do so. Upon information and belief, defendant also has taken no steps
to inform the users of its My.MP3 service or any other interested persons
that music made available for listening and download through the My.MP3
service consists of infringing reproductions of copyrighted sound recordings.
COUNT I
(Copyright Infringement)
31. Plaintiffs repeat and reallege
the allegations of paragraphs 1 through 30, above.
32. This claim is brought pursuant
to the Copyright Act and 28 U.S.C. § 2201 (a), seeking declaratory,
injunctive and monetary relief. There is an actual controversy between
the plaintiffs and defendant.
33. Under Section 106 of the Copyright
Act, each plaintiff has the exclusive right to reproduce its Copyrighted
Recordings in copies or phonorecords, and the exclusive right to authorize
the reproduction of its Copyrighted Recordings in copies or phonorecords.
34. Unauthorized reproduction of Copyrighted
Recordings constitutes infringement of the exclusive rights under Section
106 of the Copyright Act. Defendant has willfully and with full knowledge
of plaintiffs' copyrights made infringing reproductions of thousands
of plaintiffs' copyrighted sound recordings for the purpose of operating
its commercial My.MP3 interactive service.
35. As a direct and proximate result
of the foregoing acts of infringement by defendant, plaintiffs have
been and will continue to be irreparably injured.
36. As a direct and proximate result
of the foregoing acts of infringement by defendant, plaintiffs are entitled
to damages and profits under Section 504 of the Copyright Act, including
statutory damages for willful infringement in an amount to be established
at trial.
RELIEF
WHEREFORE, plaintiffs pray for judgement and relief as follows:
A. For a declaration that defendant
has willfully infringed the copyrights of plaintiffs in the Copyrighted
Recordings by making unauthorized reproductions of such works as part
of its My.MP3.com interactive service;
B. For a preliminary and permanent
injunction requiring defendant, its agents, employees, and other persons
acting in concert with, or for, them (i) to cease and deist operation
of My.MP3 or any other service that uses infringing reproductions of
plaintiffs' Copyrighted Recordings (ii) to cease and desist from making
any infringing copies of the Copyrighted Recordings; and (iii) to destroy
any infringing copies of the Copyrighted Recordings in the possession
of defendant, including without limitation any infringing copies on
defendant's computer servers;
C. For an award of damages, including,
without limitation, statutory damages for willful infringement of $150,000
per work infringed;
D. For an award of the costs of this
action, including reasonable attorneys' and expert witness fees; and
E. For such other and further relief
as the Court may deem just and proper.
Dated: New York, New York
January 21, 2000
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Respectfully submitted,
ARNOLD & PORTER
By: [signature on document]
Robert A. Goodman (RG 5026)
399 Park Avenue
New York, NY 10022
(212) 715-1000
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Hadrian R. Katz
Jule L. Sigall
Helene T. Krasnoff
555 Twelfth Street, N.W.
Washington, DC 20004
(202) 942-5000
Counsel for Plaintiffs |
Of Counsel:
Steven B. Fabrizio
RECORDING INDUSTRY ASSOCIATION
OF AMERICA, INC.
1330 Connecticut Avenue, N.W.
Suite 300
Washington, D.C. 20036
(202) 775-0101
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