STATEMENT OF WORK This Statement of Work One (“SOW”), dated as of this [ ] day of [ ] 2007, is made with reference to that certain Master Service Agreement between MediaDefender, Inc. (“Supplier”) and EMI Records Limited (“EMI”) dated as of [ ]. Supplier and EMI hereby agree on the following services and terms and otherwise incorporate the terms of the Master Service Agreement as provided in Section 1 therein. 1. Services provided
“Uber” Services
Service Definitions FastTrack (includes, without limitation, Kazaa and Kazaalite) – Swarming: Distribution of data packet segments into existing copies and subsequent downloads of illegitimate files of Customer specified titles. – – – Decoying: Distribution of Customer specified files (such as 30-second loops) in response to user search requests for Customer specified titles. Spoofing: Distribution of digital signals and null responses to search results for Customer specified titles that do not materialize in a file download. First in Line: Slowing a sharer’s ability to serve up illegal music files to other users on P2P Networks by occupying some of the illegal sharer’s connections so as to make it difficult for potential pirates from obtaining the illegal music files from the illegal sharer. Every illegal sharer will have a limited number of connections. If some of an illegal sharer's limited connections are taken by MediaDefender then potential pirates can not start downloading the illegal music files. MediaDefender downloads the illegal music files very slowly so as to not negatively affect the illegal sharer's bandwidth resources.
Gnutella (includes, without limitation, Limewire) – Swarming: Distribution of data packet segments into file downloads resulting from user search requests for Customer specified titles. – – – Spoofing: Distribution of digital signals and null responses to search results for Customer specified titles that do not materialize in a file download. Decoying: Distribution of Customer specified files (such as 30-second loops) in response to user search requests for Customer specified titles. First in Line: Slowing a sharer’s ability to serve up illegal music files to other users on P2P Networks by occupying some of the illegal sharer’s connections so as to make it difficult for potential pirates from obtaining the illegal music files from the illegal sharer. Every illegal sharer will have a limited number of connections. If some of an illegal sharer's limited connections are taken by
Page 1 of 12
CONFIDENTIAL
MediaDefender then potential pirates can not start downloading the illegal music files. MediaDefender downloads the illegal music files very slowly so as to not negatively affect the illegal sharer's bandwidth resources.
Page 2 of 12
CONFIDENTIAL
WinMX – Decoying: Distribution of Customer specified files (such as 30-second loops) in response to user search requests for Customer specified titles. – Swarming: Distribution of data packet segments into file downloads resulting from user search requests for Customer specified titles. – First in Line: Slowing a sharer’s ability to serve up illegal music files to other users on P2P Networks by occupying some of the illegal sharer’s connections so as to make it difficult for potential pirates from obtaining the illegal music files from the illegal sharer. Every illegal sharer will have a limited number of connections. If some of an illegal sharer's limited connections are taken by MediaDefender then potential pirates can not start downloading the illegal music files. MediaDefender downloads the illegal music files very slowly so as to not negatively affect the illegal sharer's bandwidth resources. BitTorrent – Decoying: Distribution of Customer specified files (such as 30-second loops) in response to user search requests for Customer specified titles. – Swarming: Distribution of data packet segments into file downloads resulting from user search requests for Customer specified titles. – First in Line: Slowing a sharer’s ability to serve up illegal music files to other users on P2P Networks by occupying some of the illegal sharer’s connections so as to make it difficult for potential pirates from obtaining the illegal music files from the illegal sharer. Every illegal sharer will have a limited number of connections. If some of an illegal sharer's limited connections are taken by MediaDefender then potential pirates can not start downloading the illegal music files. MediaDefender downloads the illegal music files very slowly so as to not negatively affect the illegal sharer's bandwidth resources. – MediaDefender currently offers protection on these BitTorrent websites:
1. Bitenova.nl 2. Btjunkie.org 3. Btmon.com 4. Bushtorrent.com 5. Fenopy.com 6. Fulldls.com 7. Isohunt.com 8. Piratic.org/WorldNova.org 9. Snarf-it.org 10. Thepiratebay.org 11. Torrentbox.com 12. Torrentportal.com 13. Torrentreactor.net 14. Torrentreactor.com 15. Torrentz.com
DirectConnect – Decoying: Distribution of Customer specified files (such as 30-second loops) in response to user search requests for Customer specified titles. – Swarming: Distribution of data packet segments into file downloads resulting from user search requests for Customer specified titles.
Page 3 of 12
CONFIDENTIAL
–
First in Line: Slowing a sharer’s ability to serve up illegal music files to other users on P2P Networks by occupying some of the illegal sharer’s connections so as to make it difficult for potential pirates from obtaining the illegal music files from the illegal sharer. Every illegal sharer will have a limited number of connections. If some of an illegal sharer's limited connections are taken by MediaDefender then potential pirates can not start downloading the illegal music files. MediaDefender downloads the illegal music files very slowly so as to not negatively affect the illegal sharer's bandwidth resources.
Page 4 of 12
CONFIDENTIAL
EDonkey (includes, without limitation, eMule, Kademlia) – Swarming: Distribution of data packet segments into file downloads resulting from user search requests for Customer specified titles. – – – Spoofing: Distribution of digital signals and null responses to search results for Customer specified titles that do not materialize in a file download. Decoying: Distribution of Customer specified files (such as 30-second loops) in response to user search requests for Customer specified titles. First in Line: Slowing a sharer’s ability to serve up illegal music files to other users on P2P Networks by occupying some of the illegal sharer’s connections so as to make it difficult for potential pirates from obtaining the illegal music files from the illegal sharer. Every illegal sharer will have a limited number of connections. If some of an illegal sharer's limited connections are taken by MediaDefender then potential pirates can not start downloading the illegal music files. MediaDefender downloads the illegal music files very slowly so as to not negatively affect the illegal sharer's bandwidth resources.
MP2P (Includes, without limitation, Piolet. Blubster) – Swarming: Distribution of data packet segments into file downloads resulting from user search requests for Customer specified titles. – – – Spoofing: Distribution of digital signals and null responses to search results for Customer specified titles that do not materialize in a file download. Decoying: Distribution of Customer specified files (such as 30-second loops) in response to user search requests for Customer specified titles. First in Line: Slowing a sharer’s ability to serve up illegal music files to other users on P2P Networks by occupying some of the illegal sharer’s connections so as to make it difficult for potential pirates from obtaining the illegal music files from the illegal sharer. Every illegal sharer will have a limited number of connections. If some of an illegal sharer's limited connections are taken by MediaDefender then potential pirates can not start downloading the illegal music files. MediaDefender downloads the illegal music files very slowly so as to not negatively affect the illegal sharer's bandwidth resources. Ares (Includes, without limitation, Ares) – Swarming: Distribution of data packet segments into file downloads resulting from user search requests for Customer specified titles. – – – Spoofing: Distribution of digital signals and null responses to search results for Customer specified titles that do not materialize in a file download. Decoying: Distribution of Customer specified files (such as 30-second loops) in response to user search requests for Customer specified titles. First in Line: Slowing a sharer’s ability to serve up illegal music files to other users on P2P Networks by occupying some of the illegal sharer’s connections so
Page 5 of 12
CONFIDENTIAL
as to make it difficult for potential pirates from obtaining the illegal music files from the illegal sharer. Every illegal sharer will have a limited number of connections. If some of an illegal sharer's limited connections are taken by MediaDefender then potential pirates can not start downloading the illegal music files. MediaDefender downloads the illegal music files very slowly so as to not negatively affect the illegal sharer's bandwidth resources.
Overnet (Includes, without limitation, eDonkey2000) – Swarming: Distribution of data packet segments into file downloads resulting from user search requests for Customer specified titles. – – – Spoofing: Distribution of digital signals and null responses to search results for Customer specified titles that do not materialize in a file download. Decoying: Distribution of Customer specified files (such as 30-second loops) in response to user search requests for Customer specified titles. First in Line: Slowing a sharer’s ability to serve up illegal music files to other users on P2P Networks by occupying some of the illegal sharer’s connections so as to make it difficult for potential pirates from obtaining the illegal music files from the illegal sharer. Every illegal sharer will have a limited number of connections. If some of an illegal sharer's limited connections are taken by MediaDefender then potential pirates can not start downloading the illegal music files. MediaDefender downloads the illegal music files very slowly so as to not negatively affect the illegal sharer's bandwidth resources.
Gnutella2 (Includes, without limitation, Shareaza) – Swarming: Distribution of data packet segments into file downloads resulting from user search requests for Customer specified titles. – – – Spoofing: Distribution of digital signals and null responses to search results for Customer specified titles that do not materialize in a file download. Decoying: Distribution of Customer specified files (such as 30-second loops) in response to user search requests for Customer specified titles. First in Line: Slowing a sharer’s ability to serve up illegal music files to other users on P2P Networks by occupying some of the illegal sharer’s connections so as to make it difficult for potential pirates from obtaining the illegal music files from the illegal sharer. Every illegal sharer will have a limited number of connections. If some of an illegal sharer's limited connections are taken by MediaDefender then potential pirates can not start downloading the illegal music files. MediaDefender downloads the illegal music files very slowly so as to not negatively affect the illegal sharer's bandwidth resources.
Page 6 of 12
CONFIDENTIAL
SoulSeek – Swarming: Distribution of data packet segments into file downloads resulting from user search requests for Customer specified titles. – – – Spoofing: Distribution of digital signals and null responses to search results for Customer specified titles that do not materialize in a file download. Decoying: Distribution of Customer specified files (such as 30-second loops) in response to user search requests for Customer specified titles. First in Line: Slowing a sharer’s ability to serve up illegal music files to other users on P2P Networks by occupying some of the illegal sharer’s connections so as to make it difficult for potential pirates from obtaining the illegal music files from the illegal sharer. Every illegal sharer will have a limited number of connections. If some of an illegal sharer's limited connections are taken by MediaDefender then potential pirates can not start downloading the illegal music files. MediaDefender downloads the illegal music files very slowly so as to not negatively affect the illegal sharer's bandwidth resources.
2. Service period As set out in Section 2 of the MSA
3.
SLA Monitoring
(A)
SLA Commitment
This monitoring scheme is subject to change. It is based on an SLA commitment of a set protection level for each protected track. Currently, the protection levels are 0.95. For EMI, a 0.95 protection level is defined as ninety five per cent (95%) respectively of all download requests that result in a failure to obtain a complete, pirated track, as set out in more detail below . References to EMI include references to any third parties engaged by EMI to provide the testing services, where the context so permits.
(B)
Number of Tests
There will be a minimum of 50 and a maximum of 150 tests carried out each week.
The testing periods occur weekly, evenly spaced. (C) Testing Overview: The testing methodology has the following basic components:
Page 7 of 12
CONFIDENTIAL
(i) The default position, or the hypothesis which must be disproved, is that the protection level is at the SLA level.
(iii) The tracks and corresponding protected networks to be tested will vary according to EMI, but each track will be tested using the identical procedure. EMI may randomly rotate track/network pairs and locations to be tested for SLA conformance. (iv) Each week, EMI may test any mix of top hits and catalogue tracks. Search results that appear to be remixes of the track under test will only be selected for download if MediaDefender is specifically protecting those remixes. (v) Any file type may be included for testing, in any proportion specified by EMI, including but not limited to: MP3, WMA, WAV and AAC and archive formats such as ZIP and RAR. (D) Testing Procedure
EMI will individually or in concert with the testing provider identify the track/network pairs and locations to be tested at a given time. A track/network pair is a unique combination of a specific artist/track (such as “Norah Jones Come Away with Me”, or misspellings, such as “Robby Williams - Angels”), monitored on a specific network, from a given location at one given time. MediaDefender will not be notified of the track/network pairs selected for testing until after the testing has been completed.
Once the track/network pairs have been identified, the test will be executed as follows:
Tracks selected for monitoring will be tested on a client corresponding to the appropriate network in the chart below. EMI can further specify the version of the client. EMI must give at least two (2) weeks‟ notice before making changes to this chart.
Page 8 of 12
CONFIDENTIAL
Peer to Peer Network
Client Application Software used for monitoring Kazaa Lite Resurrection Limewire MxPie DC++ eMule Piolet Ares eDonkey v. 1.43 Shareaza Soulseek
Fast Track Gnutella WinMx DirectConnect EDonkey2000/Kademlia MP2P Ares Overnet Gnutella 2 Soulseek
The default settings for the respective P2P client will be selected during installation. EMI must give at least two (2) weeks‟ notice before making changes.
Any term or terms without restriction is valid to search for files. However, in order to be a legitimate download attempt every file selected for download must contain either in the file name and/or metadata displayed in the client the correct artist name and track title. Any of these terms can be modified with the addition or removal of punctuation or substituted with common misspellings When a test is commenced, the client will be allowed a „ramp up‟ time of 5 minutes before a search is made Upon completion of this „ramp-up‟ time the search is allowed to continue for 5 minutes. 45 download attempts will be made in each test i.e. attempts will be made to download 45 on-screen files.
Page 9 of 12
CONFIDENTIAL
If fewer than 45 total search results are returned, the appropriate „search more‟, „search again‟ or similar feature should be used until 45 results have been obtained. If these options are exhausted and there are still fewer than 45 results, this should be noted for the track/network pair. At the end of the search period, the returned results are selected for download. Forty five results will be selected or in the case that that there is 45 or fewer results every result will be selected. The download is permitted to continue for 120 minutes (2 Hours). If there are more than 45 results the tracks will be selected in the following manner: By selecting search results in blocks of 15 i.e. from the top, middle and bottom of ALL of the search results displayed that match the artist and track combination under test as outlined previously. The search results will be ordered by the number of files or sources as displayed in the P2P client. Record the total number of download attempts.
At the end of the download period, the completed downloads are analyzed by a person listening to the downloads and the number of complete, pirated files are determined. When tracks are requested, a file is considered to be pirate if it is a complete audio file track with content which matches the meta data in the search result. For cases of 45 download attempts, if the number of pirated files is 0, 1, 2, 3, 4, or 5 the result is labelled a „pass‟ and that file‟s testing is complete. For cases of 45 download attempts, if the number of pirated files is 6 or more, the result is labeled a „fail‟ and that file‟s testing is complete. If fewer than 45 download attempts were made, the pass-fail determination is based on the following results:
Download Attempts Made 40 35 30 25 20 15 10
Fail if Pirate Count is 5 5 4 3 3 2 1
5.
MediaDefender Audit Right
MediaDefender may hire third parties to audit EMI‟s performance of the testing procedures identified above. Subject to MediaDefender‟s or MediaDefender‟s third party independent auditor‟s execution and delivery of a confidentiality agreement in form and substance satisfactory to EMI, EMI will cooperate and will cause any third party engaged by EMI to cooperate, during normal business hours with any such third party independent auditors as MediaDefender may reasonably request; provided, however, that MediaDefender shall reimburse EMI for its reasonable and documented expenses in complying with any such requests; provided further however, that MediaDefender may not exercise the foregoing audit right more than once any given six month period. 6. Client Remedies
Page 10 of 12
CONFIDENTIAL
6.1 (i) Using the methodology detailed above the result of testing will yield from 0 to X fails per month (where X equals the total number of tests performed in a month). SLA credits will be awarded on a monthly basis as follows: SLA Credit Thresholds Monthly Percent of Tests Failed (aggregate of 4 testing weeks in one month) 0% to 5% 6% to 19% 20% to 38% 39% to 50% 51% to 63% 64% to 81% Above 81% Monthly SLA Service Credit 0% 5% 10% 15% 25% 35% 50%
An example of what the Credit Chart would look like in the case where the minimum 50 tests were done per week is as follows:
Example of SLA Credit Thresholds Based on 200 Tests Monthly Fails (aggregate of 4 testing weeks in one month) 0 to 10 11 to 38 39 to 76 77 to 100 101 to 126 127 to 162 Above 162 . (ii) in the event that MediaDefender fails 75% of tests performed three (3) or more times in a four (4) week period, then EMI will have the right to terminate this Agreement upon written notice pursuant to Section 3 of the MSA. Monthly SLA Service Credit 0% 5% 10% 15% 25% 35% 50%
(iii) to the extent EMI invokes the termination rights granted to it under Section 6.1(iii) above, then EMI will be responsible for a pro-rated charge for Services only up to the point of termination, as adjusted for any credit due under Section 6.1(i).
7. Liaison Obligations
Page 11 of 12
CONFIDENTIAL
Both parties shall designate a point person to act as a liaison with the other to administer the various aspects of the service provisions agreed to hereunder.
Page 12 of 12
CONFIDENTIAL