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
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
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
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
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.
Hilary Rosen, RIAA’s president and chief executive officer, released a statement asserting that she is confident that actions taken by MP3Board.com do constitute copyright infringement.
“For several months we’ve been attempting to resolve our issues without resort to the courts. It is not surprising that MP3Board.com would seek this action given that we have already contacted them about infringement on their site and given that we had identified last Friday, the very day they filed suit, as the deadline for bringing their site into compliance with the law,” Rosen noted in the statement.
“I guess they thought the best defense is a good offense. But legal tactics like these have been tried before and they don’t work; it won’t make their site any less infringing. MP3Board.com is a substantial Web site that contains organized and egregious links to thousands of illegal sound recordings.”
According to the statement, RIAA will be filing its responsive papers in accordance with standard court procedures.
MP3Board.com filings regarding the case can be viewed by clicking here.