Warner Sues Search Engine, Tests DMCA Safe Harbor

I Don't Believe in Imaginary Property writes "Warner Bros. Records is suing SeeqPod, the music search engine, in an attempt to test the limits of the DMCA Safe Harbor provisions with a theory of contributory, vicarious and inducement liability. While other services like Last.fm have cut deals with the labels, SeeqPod relied on the DMCA Safe Harbor alone to protect it. According to the complaint [PDF] SeeqPod 'deliberately refrains' from adding simple yet ineffective content filters to screen out copyright infringing materials, presumably by not buying those filters from label-affiliated companies. Of course, this lawsuit is merely part of a recent trend seeking to move the responsibility for policing copyrights away from the copyright holders and on to third parties."

Comments

Re:Why do they even have this much power?

[nurb432]

Why does Warner yield this apparently massive amount of power in the first place? Because they have so much money.

Almost, but not yet, fully bulletproof!

[garcia]

This lawsuit is merely part of a recent trend seeking to move the responsibility for policing copyrights away from the copyright holders and on to third parties.

No, this lawsuit is just testing the waters to see if they can overturn pieces of the DMCA that do not work in their favor. If they can turn this provision over then they can fuck Google over too and tap into that endless revenue stream for allowing services like g2p to exist out there.

If anything, they should be using these sites to take down the offenders' pages and not the sites themselves.

Re:Almost, but not yet, fully bulletproof!

[jc42]

If anything, they should be using these sites to take down the offenders' pages and not the sites themselves.

Y'know, I've often wondered why people haven't been pointing that out. It would seem that for a copyright holder suing the person that points them to an infringer would be just a case of "shooting themselves in the foot". Why wouldn't they want someone to collect pointers to their copyrighted material, and make it easy to go after the infringer?

Maybe Warner is secretly in favor of copyright infringement, and it trying to shut down the search sites so that infringement can continue untracked. If so, there's some interesting economics going on here.

Re:Almost, but not yet, fully bulletproof!

[Half-pint HAL]

No, this lawsuit is just testing the waters to see if they can overturn pieces of the DMCA that do not work in their favor.

No, they're seeking to either (A) Overturn bits of the DMCA that are over-broad or (B) challenge over-interpretations of the DCMA. I do not know the DCMA very well. IANAL. IANfromtheUSA.

BUT

To understand Safe Harbor and its intentions, consider the paper publishing industry. If I write a defamatory newspaper article, who can be sued for it? I can -- I wrote it; the editor probably can too -- he gave it the green light and so effectively put his name against it; but the publishing company is the most likely target. They approved it, they make money based on sales, they're ultimately responsible -- and they have the money to pay the settlement, while neither me nor my editor is likely to be good for the cash.

Who is not sued? The printer. The printer is paid by the page. If it doesn't sell, he doesn't lose out. He has no control or interest in the content of his work -- he is content neutral.

The first rightful beneficiary of Safe Harbor legislation is Bob's Server Shack. Your average host is content neutral and has no editorial control over your site. You pay a flat fee to him directly -- Bob has no real stake in the "saleability" of your site. Bob is the same as the printer.

I don't think Safe Harbor should apply to YouTube, for example. YouTube does not receive a flat fee from the content producers, instead making its money on click-through ads. This means that YouTube's profit is intrinsically linked to the popularity of its content (and, incidentally, the most popular material often infringes copyright). To my mind, this makes YouTube a publisher, not a printer, hence a valid target for law suits. They have chosen not to employ editors. Would a newspaper company be able to publish an edition without an editor and disavow all responsibility for the content? I think not! Why should YouTube get different treatment?

Search starts to get a bit tricky though, but I think we should apply the same content neutrality argument. Most major search engines are largely content neutral. OK, PageRank may have some bias in it, but most potential hits translate to actual hits. You can search for anything you want, and Google/Yahoo/Ask/Altavista will return it. These sites don't exist purely to find illegal material.

SeeqPod is different. SeeqPod is a music search engine, and the only music people search for is illegal stuff. Sure, you may be able to search for legal stuff, but who would bother? Legal MP3s just aren't redistributed much -- if you want them, you go to the band's homepage and download them, and you don't need a music search engine for that.

In my opinion, if the Safe Harbor defence works, then the Safe Harbor law needs to be rewritten.

HAL.

Re:Why do they even have this much power?

[ricebowl]

On what grounds would you refuse them this power? Surely they should have the right to pursue litigation if they feel they, or their property, is being abused. Whether or not that's intellectual or actual property, though I do agree that they should be treated differently.

Just because Warner is suing Seeqpod doesn't mean that they have any over-arching power to do as they will, regardless of the majority/vocal opinion around the internet; but, and bear in mind I'm not American, so I could easily have this ass-backwards, if this goes to court then either the DMCA Safe Harbour will be found, in some way, inappropriate or the case will enforce the perceived strength of the Safe Harbour provision.

While I'd hope for the former (and coming from the UK I'm envious of the American Fair Use doctrine) I'd accept the risk of the latter, despite the obviously-limited effect that'd have on me. Surely to deny someone, corporation or individual, the right to pursue judicial support would be, if not unconstitutional, but unethical.

Yes, I know the patent trolls and various labels and companies have abused that right, but that right should be protected in order that everyone else can be safe in the knowledge that they can go to the courts for help and restitution. Denying one makes it easier to deny the second. Slippery-slopes and all that...

Despite all of that I do believe that Warners are acting like fools pursuing this, but that's their right.

One less movie and one less CD sold to me!

[Jane Q. Public]

I will deliberately avoid paying for Warner Brothers products next time around.

While we have seen lots of nay-sayers, the fact is that voting with your feet works, and the record companies are hurting because of it.

If we customers keep telling them "we don't want this kind of garbage, and our purchases will reflect our stance", they will listen. They have to listen. The reason they are hurting so badly right now is because they did not listen, and they are finally beginning to realize that.

Re:Why do they even have this much power?

[OECD]

Nope,we have no love for the movie and music industries and it's simply hilarious to watch them thrash and grasp at clumps of grass as they sink deeper into their graves.

If by "hilarious" you mean "despairing at our loss of privacy and civil rights due to the perceived need to prop up an outdated, but well-heeled, distribution system" then, yeah. Hi-fraking-larious.