We have a customer that runs a fan site about a popular music group. Their site consists of the lyrics to their songs and a Flash file that plays the actual song as background music. The main issue I have is that fact they are technically distributing the music because I can load the page source and find the link to the .swf file. They claim they are "streaming" the file and that it doesn't violate the artists copyright (where as an MP3 would be). Now, I disagree with this as I feel it does breach copyright laws as they are distributing it, even though they aren't saying things like "click here to download the song."
I am planning on suspending their site and refunding the rest of the period they have paid in advance. However, before doing so I just want to check what other hosts would do. Am I correct in saying that it is in violation of the artist's intellectual property rights? The customer in question claims that they have more than 50 similar sites with other hosts and there has never been an issue so I thought I would check with a few others before I go ahead and suspend the site.
Give them a certain period of time (perhaps 2 weeks) to gain permission from the copyright holder to use the song on their website, and if they cannot produce a letter allowing them permission, then you can close their account. I wouldn't be so quick to cancel their account over copyright paranoia.
As with most things legal it's not that simple. The difference between offering it for download and streaming is largely irrelevant for your purposes except to note that if it is a violation is it likely also violating the rule against public performance in addition to the exclusive right to copy.
The real question here is whether there is a "fair use" or whether the customer has acquired some other right to use the work. From your note I assume there is no acquired right. If the site is not commercial then he may not be in violation of the Act. If he charges for membership to access the page or even advertises on the page then it is likely a commercial use and thus a rather clear violation of 17 USC 106.
I usually ask my clients in this situation to shift the burden to the customer and ask them to provide you with proof that they are not violating the law. If they provide proof of a license or a solid fair use argument file it and it should keep you safe. (another discussion entirely) If not then you can ask them to fix it, give them a chance to do so, and if they donít, then pull the site - depending upon how you have set up your terms of service. You absolutely should have a term that allows you to pull a site immediately upon violation of the law of any applicable jurisdiction.
Best of Luck
Did you get a notice from the abuse team of your DC? If so I would suggest speeding things up, it also sounds like they are the 'know it all' type, I would kindly point them to your TOS and offer 24 hours to remove the content and if they get proof that they are not breaking any laws they can put it back up at a later date.. I do not think anyone will die from a site missing some backgroup music for a few weeks if it is indeed legit.
While they might be breaking the law, I would personally do nothing. While I don't own a hosting buisness (yet), I do know that a company will just send you an e-mail if they want you to take it down. I mean, it's not like anyone's going to throw you in jail because one of the sites that you host contains streams one song in its background. I mean, people do worse stuff on this MySpace with their www.freemusicvideocodes.com (or something along those lines).
Thanks for your feedback guys. Your views basically reflect mine but it is good to hear what others have to say. I think that I will bqinternet's advice and close the account if permission can't be produced within two weeks. The guy honestly doesn't think he is breaking any laws but I think it is better for him and us if he hosts the site elsewhere.
A copyright violation is a copyright violation. If your TOS clearly states that you will suspend a site with copyright violation, by all means do so. Enforce your TOS, otherwise, why place a TOS if they can just be violated.
Here is what I will do:
1. Give them a notice that their website is violating copyright. If they believe they don't, you can ask them for proof within 24 hours. If they cannot provide proof that they have permission, suspend the site.
2. Or: suspend the site and give them 24 hours to remove all copyright violation or else the site will be removed.
3. You don't simply leave them alone and wait for a notice from the music group or the recording company. Not doing anything even though you know that there is copyright violation can prove disastrous later.
We wish you well!
Last edited by Ganah ALLAN; 11-19-2005 at 11:51 AM.
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