From CMU Daily
Ah, vicarious infringement. That’s my favourite kind of infringement. Actually, I just like the word vicarious. I really ought to look up what it means one day. Anyway, the Warner Music Group has accused a US based search engine called Seeqpod of “direct, contributory and vicarious” copyright infringement. Seeqpod is a search engine which specifically seeks out music files, so if
run a search on Robbie Williams (which I just did) rather than linking me to official websites and Wikipedia biogs, it only provides links to sources of Robbie music online. Mainly illegal sources, naturally. Not only that, but there is a nifty player on the Seeqpod website which will then enable you to play those music files through the browser without downloading the actual music file. The result is an extensive on demand jukebox which is really rather good but really rather illegal.
Well, I say that, Seeqpod claim they are operating within US copyright laws, hence the WMG lawsuit. The issue of search engines which specificallyprovide links to illegal sources of music has been bubbling away for a while now, of course, most notably in China where MP3 search facilities provide by Baidu.com and Yahoo! China have been challenged by the record companies [see more on Music Law Updates on these claims]. In America search engines like Seeqpod claim that their services are covered by the so called ‘fair use’ provisions in the Digital Millennial Copyright Act because they only link to sources of illegal content, they themselves to not host files. If they are liable for enabling infringement, they argue, so are generic search engines like Google which, while not tuned to specifically search for MP3 files, will invariably provide links to illegal sources of music files if you search for an artist name, albeit normally listed several search result pages down.
As far as I remember, it’s not been tested in the US courts as yet as to whether search engines that specifically search for music files, and predominantly link to illegal sources of music, can use the ‘fair use’ defence available in the DMCA. The litigation against Seeqpod, should it reach court, might lead to a ruling on that matter, though said lawsuit would possibly centre more on the search engine’s player, which really does set the service apart from the Googles of this world.
Seeqpod claim that songs played through their player are streamed, so they are not providing a download of the track, and that the original source of the songs are on other people’s servers. But in order to stream an MP3 through their in-browser player Seeqpod is surely making a mechanical copy of the track somewhere along the line, even if the copy is immediately
deleted after being played, and, of course, you need a licence to make such copies. So even if Seeqpod can successfully use the ‘fair use’ defence to avoid infringement claims regarding the search facility, I find it hard to see how they could justify the player bit, which is what really sets their service apart.
Of course when record companies issue lawsuits against services like Seeqpod it’s actually more common for the defendant to go offline, or reach some kind of out of court settlement or licencing deal with the record company, rather than for the case to go to court. But it would be interesting if this one did reach the courtroom, because we might get some clarification regarding just how much fair use can be used to protect websites that direct users to illegal content sources.
© UnLimited/CMU: Originally published at http://www.cmumusicnetwork.co.uk
See: Dutch courts hold deeplink search engine illegal (MLU July 2006), Australia – High Court confirms deep-linking is illegal (MLU July 2007), US 9th Circuit reverses the District Court’s decision in Google v Perfect 10 (MLU July 2007), Beijing Court confirms Yahoo’s music service infringes copyright law (MLU January 2008) and see Kelly v Ariba .