• by Wendy Davis  @wendyndavis, January 25, 2008

In another legal move aimed at combating piracy, Warner Bros. has sued music search engine SeeqPod, alleging that the company is profiting from "mass infringement" on its site.

"SeeqPod is building a business on the backs of the expropriated copyrighted works of plaintiffs and other content owners," charges the lawsuit, filed recently in federal district court in California.

Specifically, the music label alleges that SeeqPod wrongly searches for, and then lets users play back, a trove of copyrighted tracks and videos. "SeeqPod searches for a particular type of content--music--that SeeqPod knows is overwhelmingly copyrighted," the complaint charges. "With simple clicks of a computer mouse, SeeqPod will play the work without authorization ... and will embed the link on social networking sites, like MySpace and Facebook, where the entire cycle of willful copyright infringement is repeated without end."

Warner Bros., which represents groups like Green Day and Linkin Park, is calling for an injunction against the site and damages of up to $150,000 for each copyrighted work. The record label last year sued social networking site Imeem for copyright infringement, but recently struck a deal with the company. Warner Bros. has also forged a licensing deal with YouTube.

SeeqPod says on its Web site that it is immune from lawsuits under the Digital Millennium Copyright Act because it acts as a search engine and doesn't "host" any material. The company--which is 5% owned by the Department of Energy's Lawrence Berkeley National Laboratory in Berkeley, Calif.--also asks copyright owners to notify it of any infringing material. Generally, the DMCA's safe harbor provisions potentially shield Web companies from liability if those companies remove infringing material in response to takedown requests.

Despite the strident tone of the complaint, the law here is anything but straightforward. "Record labels want all these cases to be seen as simple and open and shut--and they rarely are," says copyright lawyer Andrew P. Bridges.

One of the most contested factual issues is likely to be whether SeeqPod hosts pirated material or merely provides users with a link to it. Some courts have held that search engines who offer links to copyrighted material can't themselves be held liable for infringement.

But even if a court finds that SeeqPod is hosting pirated clips, the DMCA safe harbor provisions might still immunize the company from liability, provided that it removes material upon request. That issue is at the center of other lawsuits, including Viacom's case against Google's YouTube and Universal's suit against MySpace.

In the Viacom lawsuit, Google argues that the DMCA safe harbor provisions don't require it to proactively prevent people from uploading copyrighted clips--only to remove material in response to takedown notices.

But copyright owners argue that the safe harbor provisions don't apply if Web companies know they're offering pirated tracks or are directly profiting from them. In the SeeqPod lawsuit, Warner Bros. specifically accuses the company of knowingly using infringing material to grow its audience. "On the Internet," states the complaint, "a larger user base translates into higher potential advertising revenue and increased capitalization for investors anxious to maximize the returns of a growing user base."

The lawsuit also states that the Recording Industry Association of America has notified SeeqPod of "the infringement of thousands of copyrighted works."

But Bridges, who represents Google in a separate copyright infringement case, says SeeqPod has a strong argument that it doesn't know whether any particular material is pirated until it receives notice about that specific work. "There is broad protection under the DMCA," he says. "You can't just say, 'Oh, of course, you know that it's infringing.'"