MP3Board sues AOL, Time Warner over Gnutella

The company filed an addition to its lawsuit in New York federal court today, asking that a judge declare its searches of the free-ranging Gnutella file-sharing network to be legal. But if those searches of Gnutella aren't legal, then AOL--which employed the programmers who originally created Gnutella--should share some of the liability, MP3Board's lawyer says.

"It's not our preference to say Gnutella is infringing or that our search of Gnutella is infringing," said Ira Rothken, MP3Board's attorney. "But if a court finds that it is, we believe that AOL should share part of the blame."

The unlikely effort marks a new tack for MP3Board's defense, which already promises to raise potentially precedent-setting issues in online copyright law despite what many attorneys say is a steep uphill legal battle.

The Recording Industry Association of America (RIAA) sued MP3Board early this summer for creating a site that explicitly advertised itself as a way to find "illegal" MP3 songs online. As in the case of music-swapping company Napster, the RIAA contends that the site has built its business on piracy and deserves no free-speech or fair-use protections from the consequences of its actions.

MP3Board's core defense revolves around the fact that it doesn't provide downloads of any songs itself. It acts as an online search engine, and finding that it is illegal could threaten traditional Web portals' ability to link to other sites, the company says. Traditional search engines such as Yahoo or AltaVista would have to scrutinize the legal status of every one of the millions of Web addresses in their databases--an impossible task--or face similar liability if MP3Board loses its case, Rothken has said.

Today's filing, however, takes the case in a new direction.

Rothken says that bringing AOL and Time Warner into the case is the natural response of a defendant, much as someone sued for causing a car accident might in turn sue the manufacturer of the car or the maker of the car's tires for bearing some responsibility.

That argument, however, requires the company to prove that AOL is responsible, and that the technology itself--rather than MP3Board's use of the technology--is illegal. Outside attorneys say each of those tasks will be difficult.

Gnutella was originally created by programmers at NullSoft, an AOL-owned music software company. But it was done without the parent company's authorization. When AOL executives discovered the project, well into its beta-testing phase, they immediately shut down any corporate work on the system.

It was too late to stop the spread of the software, however. Versions had already found their way online, and other programmers began developing variations that incorporated the same technology. It's spun beyond the ability of any single company to control it and is distributed throughout the loose, open-source online programming community.

For this reason, AOL says it bears no responsibility for the software's spread and says today's lawsuit is simply an attempt to muddy the case's legal issues.

"We haven't seen the lawsuit or received any confirmation that the lawsuit has been filed," said Rich D'Amato, an AOL spokesman. "However, as it is described, it appears to be a lawsuit based more on desperation than it is on the law."

Attorneys are doubtful that AOL can be brought into the case--or that the legal status of Gnutella as a technology can be brought in--unless the record labels bring up the issue.

"Copyright owners have the right to select the defendants they want to pursue and ignore the defendants they want to ignore," said Leonard Rubin, a partner in Chicago law firm Gordon & Glickson. "Attempting to add AOL and Time Warner as defendants is not going to give MP3Board any comfort or lessen their liability in any way."

The issue in the case is MP3Board's use of the technology available, including Gnutella, Rubin added. Even if Gnutella itself is deemed legal, using the technology explicitly to find "illegal" copyrighted songs could be deemed illegal by a court, he noted.