Is The Lycos MP3 Index Legal?

Is The Lycos MP3 Index Legal?

From The Search Engine Report
March 3, 1999

Within hours after Lycos launched its MP3 service in February, the Recording Industry Association of America expressed concerns. Thousands of illegal recordings are now available in MP3 format, so RIAA was not thrilled to have a major site offering a service that makes it easier to find them.

A statement quickly followed from RIAA saying that Lycos had agreed to work with it to keep illegal files out of its system. No action has yet happened, but RIAA expects to have meetings shortly with Lycos to discuss procedures for removing illegal links.

"We want to look first at the technical aspect of how their engine is set up and how the database functions, what resources it takes to inform them about unauthorized links, and what they can do technically to remove them," said Frank Creighton, Directory of Anti-Piracy for RIAA.

That's going to be a real challenge. There's no easy way that Lycos can automatically determine if a file is legal. Creighton said RIAA might be able provide Lycos with a list of artist names that are known to have no legal MP3 recordings released -- so that it could refuse to index files containing those names.

That's not foolproof, of course -- and legitimate files might inadvertently be excluded. There are also proposals for a digital watermarking standard, but there's no guarantee that legitimate MP3 producers will comply.

It's somewhat amazing that Lycos put up the index at all, since you would think it had to know that the service would link to thousands of illegal files. No doubt MP3 users will love the service, but it could open Lycos up to liability issues.

The new Digital Millennium Copyright Act of 1998 is key in all of this. President Clinton signed the US law into being on October 28 of last year, and it makes it illegal for those in the US to knowingly link to pirated material.

The law does have a provision exempting search engines from liability over linking to illegal material, which makes sense. General web-wide search engines have no easy way of knowing whether the pages they link to are legal or not. The protection against the small amount of pirated material they may list is fair trade-off to ensure the common good such services bring.

The situation is different with an MP3 search engine that scans widely across the Internet. That's because it pretty certain that if you do this now, you'll naturally link to many illegal files. For a search engine to be exempted from liability under the copyright act, it must not have a "requisite level of knowledge" that it is linking to illegal material, the act's summary states. If called to court, it would seem difficult for Lycos to argue it lacked knowledge that much of its MP3 index linked to illegal material.

Lycos disputes that it can know, from an absolute legal perspective, that its MP3 service links to pirated material without investigating the various links -- which it has no intent to do.

"There's a burden of proof that must be shown. Just because there's a name that would appear to be copyrighted, we can't make an broad assumption that those people are breaking the law," said Lycos spokesperson Brian Payea. "There are folks up there who have cover bands, who use a name that draw attention to their new music. You can't say that just because one artist's name is mentioned in a string that there is necessarily copyright infringement going on."

RIAA doesn't agree. "When you are talking about major artists and major acts, you should be able to realize there's a high probability these are illegal and not index them," Creighton said.

If RIAA really does make progress with Lycos, then it's likely the index will lose its attraction for some users, who are after popular songs that are distributed illegally.

"If we had the ability today to deliver to them every unauthorized link, I think the value of the engine would be reduced," Creighton said.

On the other hand, MP3 is growing as a format even among major artists. For instance, Tom Petty released a free MP3 single this week. So the loss of illegal links doesn't mean that MP3 search engines have no role to play. The work between RIAA and Lycos may help produce a system that other major services can follow safely.

"To the extent there's going to be legitimate use for these type of engine in the future, we want to facilitate that," said Creighton.

The DMCA remains lurking as a stick that RIAA can wave to get compliance out of Lycos. The act's summary also states that "upon receiving a notification of claimed infringement, the provider must expeditiously take down or block access to the material." That means that if RIAA or others aren't satisfied with Lycos's progress, they could file notice and force the company to take action or defend itself in court.

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An introduction to the format and the legal issues surrounding it.

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