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MP3 Board Sues RIAA

In a move to counter industry pressure, MP3Board.com announced Monday it has filed suit against the Recording Industry of America.

The filing aims to halt the RIAA's attempts to shut down the mp3board.com Web site which provides hyperlinks to sites and files the RIAA maintains infringes on copyrights.

"My client recently received a cease-and-desist letter from RIAA and filing this suit was the best option we had in response," stated Ira Rothken, Esq., legal counsel for MP3.

The lawsuit escalated a confrontation that began late last year. MP3.Board alleges that beginning in October 1999, and continuing to the present, the RIAA has demanded that it discontinue its use of providing hyperlinks to other Web sites, pages and files.

The MP3Board site includes automated hyperlink lists and search engines that seek out and index massive amounts of mp3 and music related content on the Internet. The suit alleges that MP3Board does not store on its Web site any MP3 files -- such files are only available by visiting other sites not owned by MP3Board.

The RIAA, in turn, states that because its member companies own more than 90 percent of all legitimate sound recordings released in the U.S., it is highly likely that most links containing the names of recognizable artists are linking to copyrighted material.

This strategy is flawed, noted Rothken. "It is like holding the phone book responsible for listing companies that sell pirated software," he said.

"This lawsuit is about whether a search engine or automated linking service has an obligation to edit hyperlinks to other sites," he continued. "We do not think that we have such a duty -- it would lead to paralysis on the Internet -- every search engine whether it was Altavista, Hotbot, or Excite would require human editors with knowledge of all the songs ever made and skilled in copyright law to analyze every Web page and music file in the search engine's index for infringement."

Maureen O'Rourke, an IP lawyer at Boston University, supports Rothken's arguments.

Quoting the Ticketmaster vs. Ticketcom case, O'Rourke noted, "Hyperlinking does not itself involve a violation of the Copyright Act since no copying is involved. The customer is automatically transferred to the particular genuine Web page of the original author. There is no deception in what is happening."

It's an interesting claim, she told InternetNews.com. "The Ticketmaster court left open the possibility that the wholesale copying a search engine could be copyright infringement."

However, she added that pursuing this may not be the best tactic for RIAA to take. "I don't think that would be the best result legally or from a from a policy perspective," she said. "I think that copying to extract uncopyrighted information is fair use by analogy to the video game cases where courts held that reverse engineering a copyrighted game console was fair use when it as done to obtain uncopyrighted interface specs.

"I don't think it would be a good idea to hold search engines copyright infringes; think of what that would do to competition on the Internet," she said.

According to the suit the RIAA has also demanded that ISPs cease and desist, under threat of legal action, from providing web-hosting services to MP3Board.

"MP3Board needed to act decisively to file this lawsuit to protect its right to use new and evolving technology to automate searching and linking on the Internet," said Rothken. "We do not store MP3 files on the MP3Board.com web site -- we are a mere conduit that manifests links to other sites like Lycos and Hotbot -- mere linking to other public sites is not copyright infringement."

RIAA has until June 23 to respond to the lawsuit. Rothken anticipates a status conference between the parties will occur within 90 days.