Labels Attack Music Search Engines

Lawyers scurried to San Jose, CA, bankruptcy court in April to argue over the remains of SeeqPod Inc., the first big casualty on the newest front in the legal war between the record industry and the Internet.

The Emeryville, CA, startup doesn't host music, like Napster did; it's a search engine that lets users find music online and listen to it on Seeqpod.com. But facing mounting legal bills from two copyright infringement suits, SeeqPod filed for bankruptcy. Warner Music Group filed one of the suits against SeeqPod, and record label EMI filed the other ' each seeking $150,000 for every infringing play of their songs.

More Than Search

The recording industry has been quick to attack nascent music search engines. Another startup, Project Playlist, is also facing lawsuits from a number of record companies and the Recording Industry Association of America (RIAA). The labels accuse SeeqPod and Project Playlist of infringing on their copyrights by what amount to public performances on their Web sites. And, of course, they allege that the startups are aware that a lot of the music they link to is of the pirated variety.

“SeeqPod's business model is based upon the free and unauthorized availability of plaintiffs' popular copyrighted works,” wrote Warner's lawyers from Munger, Tolles & Olson in their complaint, which was filed last year.

Although the rhetoric against SeeqPod and Project Playlist echoes past battles between the record companies and file-sharing sites like Napster, the legal arguments are different.

“The difference is that these are search engines, so they're going to be saying, 'We're no different than Google,'” says George Borkowski, a partner at Venable who represented the record companies against Napster.

In its motion to dismiss, Project Playlist's lawyers at Wilson Sonsini Goodrich & Rosati point to '512(d) of the Digital Millennium Copyright Act (DMCA) that gives a safe harbor to the results generated by “information location tools” such as search engines. Wilson Sonsini also pooh-poohs the “radical theory that Playlist should be responsible for all of the content to which it provides a link.”

But the record companies contend that music search engines are far more than just search engines. The RIAA says Project Playlist makes unauthorized copies because it has an audio player on its site that plays the tunes turned up by any search, although Warner's suit against SeeqPod doesn't go that far.

Suits As Strategy

Fred von Lohmann, a lawyer with the Electronic Frontier Foundation, says these cases could become some of the first to test '512(d) of the DMCA. However, Von Lohmann is quick to point out that making law is probably not the first thing on the mind of the plaintiffs.

“In a lot of these lawsuits, the recording industry is at least as interested in chilling the investing community as in pursuing the legal claims,” Von Lohmann says. “They want to send a message.”

The lawsuits are also used by the record companies as leverage for getting a piece of the action with promising startups, IP lawyers say.

“The whole thing is not to drive tech companies out of business, it's to try to get them to respect the rights of the copyright owners and get a deal,” Borkowski says.

Music label EMI dropped its case against Project Playlist in late March after the startup agreed to license its music catalogue. A similar deal was struck with Sony BMG last year.

SeeqPod also was apparently close to a deal until it filed for bankruptcy protection on March 31, according to a fresh batch of filings in bankruptcy court.

Munger lawyers representing Warner Music Group claim their client was “in the midst of ongoing settlement talks” on March 30, when
SeeqPod “abruptly changed course and filed bankruptcy.” The Munger lawyers accuse SeeqPod of filing for bankruptcy protection to stay the lawsuits against it.

Lawyers from Farella Braun & Martel, which represented SeeqPod in the litigation and according to the bankruptcy filing are still owed $424,235.06, declined to comment on the case. Lawyers from Munger did not return calls and Warner declined to comment.

Gregory Charles, a Campeau Goodsell Smith lawyer who is representing SeeqPod in the bankruptcy, says he couldn't comment on exactly why the company decided to file. Charles was off to the courthouse to argue against Warner's motion for a temporary restraining order. At issue: SeeqPod threatening to license its technology to others to plant a thousand other SeeqPods.

Von Lohmann says that, lately, record companies have been acting like they want deals more than death through litigation when they sue startups. He points to another case brought by Warner Music Group against Imeem, a music-streaming site, in which the record label invested $15 million into the company after settling the lawsuit.

“If SeeqPod fails, I think the labels will have lost for winning ' I think what a lot of observers were expecting was a deal like with Imeem,” he says.

Lawyers scurried to San Jose, CA, bankruptcy court in April to argue over the remains of SeeqPod Inc., the first big casualty on the newest front in the legal war between the record industry and the Internet.

The Emeryville, CA, startup doesn't host music, like Napster did; it's a search engine that lets users find music online and listen to it on Seeqpod.com. But facing mounting legal bills from two copyright infringement suits, SeeqPod filed for bankruptcy. Warner Music Group filed one of the suits against SeeqPod, and record label EMI filed the other ' each seeking $150,000 for every infringing play of their songs.

More Than Search

The recording industry has been quick to attack nascent music search engines. Another startup, Project Playlist, is also facing lawsuits from a number of record companies and the Recording Industry Association of America (RIAA). The labels accuse SeeqPod and Project Playlist of infringing on their copyrights by what amount to public performances on their Web sites. And, of course, they allege that the startups are aware that a lot of the music they link to is of the pirated variety.

“SeeqPod's business model is based upon the free and unauthorized availability of plaintiffs' popular copyrighted works,” wrote Warner's lawyers from Munger, Tolles & Olson in their complaint, which was filed last year.

Although the rhetoric against SeeqPod and Project Playlist echoes past battles between the record companies and file-sharing sites like Napster, the legal arguments are different.

“The difference is that these are search engines, so they're going to be saying, 'We're no different than Google,'” says George Borkowski, a partner at Venable who represented the record companies against Napster.

In its motion to dismiss, Project Playlist's lawyers at Wilson Sonsini Goodrich & Rosati point to '512(d) of the Digital Millennium Copyright Act (DMCA) that gives a safe harbor to the results generated by “information location tools” such as search engines. Wilson Sonsini also pooh-poohs the “radical theory that Playlist should be responsible for all of the content to which it provides a link.”

But the record companies contend that music search engines are far more than just search engines. The RIAA says Project Playlist makes unauthorized copies because it has an audio player on its site that plays the tunes turned up by any search, although Warner's suit against SeeqPod doesn't go that far.

Suits As Strategy

Fred von Lohmann, a lawyer with the Electronic Frontier Foundation, says these cases could become some of the first to test '512(d) of the DMCA. However, Von Lohmann is quick to point out that making law is probably not the first thing on the mind of the plaintiffs.

“In a lot of these lawsuits, the recording industry is at least as interested in chilling the investing community as in pursuing the legal claims,” Von Lohmann says. “They want to send a message.”

The lawsuits are also used by the record companies as leverage for getting a piece of the action with promising startups, IP lawyers say.

“The whole thing is not to drive tech companies out of business, it's to try to get them to respect the rights of the copyright owners and get a deal,” Borkowski says.

Music label EMI dropped its case against Project Playlist in late March after the startup agreed to license its music catalogue. A similar deal was struck with Sony BMG last year.

SeeqPod also was apparently close to a deal until it filed for bankruptcy protection on March 31, according to a fresh batch of filings in bankruptcy court.

Munger lawyers representing Warner Music Group claim their client was “in the midst of ongoing settlement talks” on March 30, when
SeeqPod “abruptly changed course and filed bankruptcy.” The Munger lawyers accuse SeeqPod of filing for bankruptcy protection to stay the lawsuits against it.

Lawyers from Farella Braun & Martel, which represented SeeqPod in the litigation and according to the bankruptcy filing are still owed $424,235.06, declined to comment on the case. Lawyers from Munger did not return calls and Warner declined to comment.

Gregory Charles, a Campeau Goodsell Smith lawyer who is representing SeeqPod in the bankruptcy, says he couldn't comment on exactly why the company decided to file. Charles was off to the courthouse to argue against Warner's motion for a temporary restraining order. At issue: SeeqPod threatening to license its technology to others to plant a thousand other SeeqPods.

Von Lohmann says that, lately, record companies have been acting like they want deals more than death through litigation when they sue startups. He points to another case brought by Warner Music Group against Imeem, a music-streaming site, in which the record label invested $15 million into the company after settling the lawsuit.

“If SeeqPod fails, I think the labels will have lost for winning ' I think what a lot of observers were expecting was a deal like with Imeem,” he says.