MP3Board today filed its own claim against the Recording Industry Association of America, asking for redress for the RIAA's role in "temporarily shutting down the MP3Board Web site" because it links to copyrighted songs on other Web sites.
The site contends that it simply posts links to content hosted on other Web sites, and that there is nothing illegal about such hyperlinks.
"It is essential to the Net that there is an implied license to link to other Web sites," said Ira Rothken, MP3Board's attorney. "Otherwise, any site that aggregates links would be guilty of copyright infringement."
The case is attracting some attention from the online community for its potential to set precedents on legal Web site links. But MP3Board isn't rallying the support enjoyed by Napster.
In the early days of its operation, before the RIAA's lawsuit was filed, the company had explicitly touted itself as a way to find "illegal" MP3s.
"This wasn't innocent linking," RIAA president Hilary Rosen said in an interview last week. "(This) was a target that has advertised itself repeatedly as the site to go to for the best unauthorized files."
The company offers three ways to find files. It has a search engine that scours the Net for MP3 files to link to. It has a Web interface to a Gnutella search engine, which plugs into individual computers connected to the Net to look inside private music collections. And it allows Web site owners to submit their own addresses for inclusion in its search engine.
MP3Board should not be held responsible for infringing content because of any of these offerings, the company and its lawyer say; that responsibility lies with the sites they link to that are making the content available and the people downloading the songs that are making copies. Those are the sites that the record industry should target, not the search engines, Rothken said.
"This case is about copyright owners taking responsibility for their own policing," he added. "Without sites like MP3Board, (record companies) would not be able to police their own content."
That argument--whether a link is just a link or a vehicle for illegal copying--is being tested in several venues this month.
Napster, which goes to court July 26 to fight the RIAA's attempt to shut it down, contends that it is only a directory service that lets its members connect to one another. Napster itself makes no copies, the company says, and is therefore protected under copyright law.
The fight over Linux DVD-copying software known as DeCSS, which is pitting the Motion Picture Association of America against hacker publication 2600 Enterprises, raises a similar issue. The editor of 2600.com, Eric Corley, is charged with violating a court order by providing a link to copies of the DeCSS source code after a court had ordered him to take the code off his site.
The record industry, however, says it's not trying to eliminate the practice of linking online.
"This case isn't about hyperlinking; it's about a corporate defendant that is profiting from the deliberate facilitation of copyright infringement," the trade association says on its Web site.
Both sides could have a difficult argument ahead.
At least one California court has tentatively said that linking alone is not a copyright infringement, according to attorneys.
"When you provide a link to someone else, you're not copying anything. You're just allowing access," said Len Rubin, a partner in Chicago law firm Gordon & Glickson. "You are providing a shortcut, but you're not doing the copying itself."
But in both the Napster and MP3Board cases, the RIAA is arguing that the companies are contributing to copyright infringement, not that they are explicitly making the copies themselves. Under that standard, it matters that the site knew it was linking to copyrighted works--and MP3Board's categories such as "SuperIllegal MP3z" won't help them on that end.
The company is taking some steps toward conciliation with the industry. It said today that it's developing an automated system through which content owners can tell a Web site it is linking to unauthorized content. That will help a search engine avoid looking at every link in its database and will give copyright holders a way to remove their content from the databases quickly, the company's executives said.