Last month, plaintiffs Atlantic Records, Warner Bros, UMG, Sony and Capital Records obtained a temporary restraining order (TRO) from a Florida district court, forbidding Sampson and everyone else associated with the project from infringing their copyrights.
Shortly after, Sampson published the ‘back-end’ Aurous source code to Github, enraging the RIAA who accused him of breaching the TRO. Aurous’ legal team had previously offered to settle and throw in the towel, but the alleged breach appeared to scupper those plans.
Instead, the RIAA asked for Sampson and Aurous Group to be held in contempt of court and punished via monetary sanctions, all while plowing ahead in pursuit of a preliminary injunction. Aurous made two attempts at convincing the court that a preliminary injunction should not be issued and earlier this week the RIAA issued its response. It makes for train-wreck reading.
“Defendants continue to ignore critical evidence of their liability for copyright infringement and the irreparable harm they are causing, while misciting the law and misstating the facts,” the RIAA begins.
“Defendants make a fundamental error in asserting that ‘[t]he motion for a preliminary
injunction is an attempt to hold Aurous responsible for the actions of its users.’ To the contrary, this motion is about Defendants’ conduct in creating a service through
which Defendants cause and facilitate copyright infringement..”
There’s a good reason why legal advice often begins with “say nothing” and in this respect the RIAA is making hay while the sun shines.
“It is too late for Defendants to pretend that they ‘had no knowledge of the infringement of either the consumers, or the websites in which the consumers were directed towards’,” the RIAA states.
“Defendants’ belated profession of innocence rings with hypocrisy, particularly in light of Defendant Sampson’s own earlier statements (some of which he has tried to delete) reflecting his own sophisticated knowledge of copyright infringement and his commitment to aiding infringers while thwarting copyright owners.”
Noting that Sampson marked as ‘favorite’ a Twitter message declaring “dead [A]pple [M]usic, dead Spotify, as soon as Aurous launches its [sic] all over”, the RIAA references comments made by Sampson in a Billboard article which detailed his attitude towards takedown efforts.
“If you were to receive a cease-and-desist, what would your reaction be?” the publication asked.
“Ignore it,” Sampson responded.
Things only get worse when the RIAA recalls what happened when one of their representatives sent Sampson a DMCA notice asking for content to be removed from his ‘Strike‘ search engine.
“Sampson responded by telling the representative to ‘f*ck off’,” the RIAA explains.
The RIAA continues by picking apart almost every defense put forward by Aurous, including that pulling music from YouTube and SoundCloud without a license is permissible under law.
“Plaintiffs have not authorized the streaming or downloading (copying) of their recorded music from websites except pursuant to agreements that control the terms on which such works are made available,” the RIAA notes.
“Defendants can only cause such downloads to occur by circumventing the protections such sites have against such downloading and violating the sites’ terms of service that expressly prohibit such conduct.”
Even efforts by Aurous to claim a “safe harbor” defense under the DMCA appear to have fallen on stony ground, with the RIAA noting that the music service failed at the first hurdle.
“Defendants cannot satisfy the basic threshold requirements for eligibility because they do not have a designated agent for receipt of infringement notifications registered with the U.S. Copyright Office,” the labels explain, adding that the service also failed to display an agent’s details on its website.
Pressing on, the RIAA says that safe harbor protection also requires that a service adopts and reasonably implements “a policy to terminate repeat infringers”. Aurous has no such policy but the RIAA suggests that point is moot since DMCA safe harbor immunity is “granted only to ‘innocent’ service providers.”
To support the latter point the RIAA digs out case history from isoHunt versus the MPAA, which noted that no safe harbor is available when “the record is replete with instances of [the defendants] actively encouraging infringement.”
Wrapping up, the RIAA criticizes the earlier release of the Aurous source code while demanding a preliminary injunction.
“It is particularly telling that Defendants no longer deny that Defendant Sampson violated the TRO by making the current Aurous source code available to the public for more than five hours on Sunday, October 25. Instead, they now shamelessly suggest that ‘[i]f this is the case, then the cat is out of the bag’,” the RIAA writes.
“It is precisely this type of blatant disregard for Plaintiffs’ rights and this Court’s Orders that requires entry of a preliminary injunction.”
But despite the aggression from the RIAA, there are now signs of peace on the horizon. At the start of an evidentiary hearing yesterday, both sides requested time for a discussion. Out of that discussion came an agreement to put the preliminary injunction hearing on hold and work towards “a global resolution of the case within the next ten days.”
Considering the background to the case, this apparent offer to enter into settlement negotiations is excellent news for Andrew Sampson and Aurous Group. On the downside, any conclusion is also guaranteed to involve the total closure of the Aurous service and anything similar Sampson may have up his sleeve.
Considering what the RIAA could’ve inflicted upon him, that is probably a very small price to pay.