March 19, 2001 2:50 PM PST

Judge waves MP3Board suit into court

A federal judge has cleared the way for an online music search service to sue the record industry, potentially providing legal shelter for search engines that link to infringing material on the Web, legal experts say.

The suit seeks damages over a 10-day blackout imposed on MP3Board after its Internet service provider received notice of alleged copyright violations from the Recording Industry Association of America (RIAA). In a decision last month that was first made public Friday, U.S. District Court Judge Sidney Stein denied the RIAA's motion to dismiss the suit.

Although Napster has attracted huge attention with its legal fight against the recording industry, this case has also felt the heat of the spotlight because it could set a precedent for the role of Internet search engines that hyperlink to certain Web sites.

Legal experts said it could also set limits on the Digital Millennium Copyright Act (DMCA), which gives ISPs wide authority to police alleged infringement under its "notice and take down" provisions.

"This case is good news for search engines," said Whitney Broussard, an intellectual property attorney at Selverne Mandelbaum & Mintz. "Basically, the court is making it clear to copyright owners that if they're going to be sending 'take down' notices, they have to do it in compliance with the DMCA, and that if they send notices frivolously, they might be subjected to damages."

In June, the RIAA sued MP3Board for allegedly linking to unauthorized copies of such files. The following month, MP3Board filed a counterclaim against the RIAA for its role in "temporarily shutting down the MP3Board Web site."

Ira Rothken, attorney for MP3Board, said he believes this is the first time a court has allowed a claim under the DMCA and state tort law for damages related to an improper takedown notice to move forward.

"This case is about whether or not hyperlinks arising out of search engine results can constitute contributory copyright infringement, and we're defending the case saying it cannot," Rothken said. "We're confident we're going to prevail in that point. Otherwise, it will lead to paralysis on the Internet as a whole."

The case will be brought to trial the week of May 23, according to Rothken.

The RIAA could not be immediately reached for comment.


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