The Recording Industry Association of America (RIAA) wasted no time in going after the new streaming site, Aurous. A mere three days after its “alpha” launch, RIAA’s constituent major labels, Atlantic, Warner Bros., UMG Recordings, Sony Music and Capitol Records (the entities that have standing to sue) filed their copyright infringement action against the company and its founder and principal designer, Andrew Sampson. The 20-page complaint, filed October 13, seeks temporary and permanent injunctive relief, statutory damages for “willful” infringement in the amount $150,000 (or, alternatively actual damages to be proven at trial), as well as costs and attorney’s fees, pursuant to Copyright Act §§501-502 and §§504-505.
So what is Aurous and why is the RIAA so miffed? In an interview in Billboard the day before the suit was filed, Sampson explained that the service is a mere music player, or an aggregator of other players:
At the most fundamental level, it’s a music player like any other. What stands out is that it can take advantage of other existing platforms and piggyback off those, and integrated those into platform…..You have YouTube, Spotify playlists, Apple Music playlists — the end goal, once we’re out of alpha, is to put those playlists into our app, and it’ll do the rest of the work. So you can listen from anywhere that you have a playlist.
Obviously, the RIAA sees a more sinister operation, one that offers access to pirated music files through the BitTorrent network, but with an interface that makes it much easier for ordinary non-geeks to use. As touted on the Aurous site: “Aurous is BitTorrent Music for Your Dad.“ The complaint makes a less flattering comparison: “Like Grokster, Limewire or Grooveshark, it is neither licensed nor legal.” RIAA alleges that Aurous is set up to receive music exclusively from overseas pirate sites. The complaint further alleges that Aurous unfairly and unlawfully competes with legitimate, licensed sites such as Apple Music, iTunes, Google Play, Rhapsody and Spotify.
The complaint contains three counts of infringement: 1) inducement of copyright infringement, 2) contributory copyright infringement, and 3) vicarious copyright infringement. Notice that neither defendant is sued for actual, direct copyright infringement.
Why is this? Since the heady, ‘ster crazy days of Napster, Grokster, Aimster and other first generation pirate sites, newer avatars of unlicensed free services are careful not to upload any content on its own servers. Instead, they act as convenient portals for users to search and access allegedly infringing files stored elsewhere. Aurus, the so-called “Popcorn Time for music,” apparently does not store files on its systems. That’s why defendants aren’t alleged to be committing any actual infringement themselves. So what are these three distinct, but related claims of indirect infringement?
Inducement of copyright infringement, as described by the Supreme Court in the Grokster decision, is where “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” That is precisely what RIAA alleges:
Defendants have designed and launch and are operating Aurous with the object of promoting its use to infringe Plaintiff’s copyrights. Defendants knowingly and intentionally induce, entice, persuade and cause users of Aurous to infringe Plaintiff’s copyrights in their sound recordings….
Contributory infringement is where a party has knowledge of another person’s direct infringement and engages in “substantial” participation in the infringement. Here, RIAA alleges: “Defendants have specific, actual, and constructive knowledge of both the infringing activity at the sources of unauthorized copies of Plaintiff’s works that Aurous locates and to which it links, and of the infringing activity of Aurous’s users.” Together, the first two counts amount to Aurous touting that they’ve got lots of infringing files for you to find (inducement) and then they provide the tools to make it easy for you to access these files they know or should know aren’t legit (contribution).
So what’s vicarious copyright infringement? That’s where a defendant has the right to supervise or control the conduct of the actual infringers and also receives a “direct financial interest” in the infringing activity. While this theory of liability is an outgrowth of the doctrine of respondeat superior, there need not be an employer-employee relationship, as is the case with Aurous and its users. Vicarious copyright infringement is the theory upon which performing rights organizations like ASCAP and BMI are able to hold the owners of nightclubs that perform music without a license liable even though the club may be owned by a corporate entity. This basis of copyright infringement allows RIAA to sue Sampson individually without having to “pierce the corporate veil.”
Here’s how RIAA alleges the elements of a vicarious liability claim:
By providing and operating their service, Defendants are receiving a direct financial benefit from copyright infringement in the form of a growing base of users that Defendants can monetize now or later with advertising and other methods of generating revenue. Defendants have stated their intention to display advertising on Aurous. Defendants have the right and ability to stop or limit the infringing activity occurring via their service but they take no steps to do so. Defendants are able to supervise or control the infringing activity of their users in many different ways, including by deciding the sources from which Aurous can and cannot retrieve music files, and through the ability to remotely alter the behavior of the Aurous service by issuing automatic updates to software installed on users’ computers.
Aurous promptly tweeted its view of RIAA’s “direct financial benefit” claim: “@RIAA principle [sic] complaint is that we’re ‘profiting’, anyone see any ads? We sure don’t.” The complaint doesn’t allege any specific activity by Sampson other than to state that “he describes himself as the lead software developer for the Aurous service and the individual responsible for decisions regarding the service” and that he’s the company’s President.
So now you know why RIAA doesn’t allege any direct infringement by defendants but instead bases its claim on three related and often overlapping theories of indirect copyright infringement. The word “aurous” means something that’s made of or contains gold. Whether Aurous might be a gold mine for RIAA or the defendants depends upon whether the court buys the RIAA’s assertion that Aurus is “illegally profiting from piracy by free riding on the creative efforts and investments of others” or takes theEFF‘s view that “[o]nce again, @RIAA asks a court to order the entire world to block & filter an app they don’t like.” Apparently, the Florida federal district court seems inclined towards the former, having issued a temporary restraining order effectively shuttering the site until a hearing on a motion for a preliminary injunction scheduled for October 28.