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The battle continues between a California-based search engine and the record labels suing it for copyright infringement. U.S. District Judge Sidney H. Stein of the Southern District of New York on Thursday rejected both sides’ bids to rule in their favor on summary judgment, forcing the suit a step closer to trial. The case raises the novel issue of whether hyperlinks to pirated material constitute copyright infringement. It involves a Web site, www.MP3Board.com, which makes no secret that its business is to help users scour the Internet for music files — or MP3s — on third-party Web sites. Last June, the record labels sued the search engine as part of their ongoing mission to stamp out online music pirates and their alleged aiders and abettors. MP3Board countersued, arguing it is simply exercising its right to free speech. The company claims it is no different from Google or Yahoo, an innocent search engine, or “information location tool” telling users where to find what they seek. It says it deserves more protection than a service like Napster, the now-defunct file-swapping service that was found liable for copyright infringement for its role as an active intermediary in the distribution of pirated music. In contrast, MP3Board contends, it functions merely as a passive, automated search engine that seeks and provides links to media files on the Web without regard to content. Suing it, the company argues, is the equivalent of outlawing sales of the Physicians’ Desk Reference, the pharmaceutical reference book, “because of speculation that drug addicts search its pages for new ways to ingest mind-altering substances.” In its decision, Arista Records Inc. v. MP3Board Inc., 00 Civ. 4660, the court rejected MP3Board’s motion, finding its activities not protected by the Constitution since they do not qualify as “fair use,” the First Amendment-derived exception under the Copyright Act permitting certain non-commercial use of protected materials. The court also found issues of fact as to whether the Web site had engaged in contributory or vicarious copyright infringement. But the labels’ motion fared little better because the court found material issues of fact exist as to whether direct infringement occurred with the aid of the MP3Board site. A third party, the Recording Industry Association of America (RIAA) did succeed in extricating itself from the case: The industry trade group’s motion for summary judgment was granted. MP3Board had sued the recording industry association in the Southern District and in federal court in California for sending notices of copyright infringement to MP3Board’s Internet providers, forcing the search engine to shut down several times in 1999 and 2000. The association threatened to sue the providers unless they either cut off the search engine’s Web access or it disabled thousands of links to music files. MP3Board alleged that such actions constituted tortious interference and knowing material misrepresentation of infringement in violation of the Digital Millennium Copyright Act. The court rejected the claims, finding that the recording industry group’s notice letters were protected as “simple pre-litigation demand” letters. Ira Rothken, a solo practitioner in San Rafael, Calif., represents the defendant. J. Christopher Jensen of Cowan Liebowitz & Latman represents plaintiffs Arista Records, BMG Music, d/b/a/ RCA Records, Capitol Records Inc., Hollywood Records Int’l, Interscope Records, La Face Records, Motown Record Co. and Sony Music Entertainment Inc. Katherine B. Forrest of Cravath Swaine & Moore represents plaintiffs Elektra Entertainment Group, Atlantic Recording Corp. and Warner Brothers. Third-party defendant RIAA is represented by Jeffrey G. Knowles of Coblentz, Patch, Duffy & Bass in San Francisco.

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