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MP3Board sues to protect links to files
A Santa Cruz Web site operator has escalated the already mounting legal battle over the distribution of copyrighted music on the Internet, filing a lawsuit on Friday that seeks to define how far the recording industry can go to restrict access to digital recordings in cyberspace.

In a complaint filed in U.S. District Court in San Jose, MP3Board Inc. has asked a federal judge to prevent the recording industry from shutting down its Web site, which offers a panoply of ways to link to MP3s, the increasingly popular digital music files that play on personal computers and portable devices.

The lawsuit, which targets the Recording Industry Association of America, maintains that copyright laws should not apply to Web sites like MP3Board.com that simply offer links to other sites, even if those sites offer pirated material. The industry has threatened to shut down MP3Board's site by invoking a new federal digital copyright law, prompting the company to strike back in court.

MP3Board's lawsuit comes on the heels of other recent high-profile court battles between the industry and companies such as San Mateo-based Napster Inc., whose software enables users to copy high-quality digital recordings off other people's computers rather than buying them.

"We're not Napster," said San Rafael attorney Ira Rothken, who represents MP3Board. "We don't have . . . MP3 files. We're a mere conduit, like Lycos or Hotbot. What this lawsuit is about is whether a search engine or linking service has an obligation to edit automated links. By going after us, they are basically oppressing free speech for everybody."

Industry officials could not be reached for comment, but in recent weeks have delivered letters to MP3Board indicating they believe its site infringes on intellectual property rights by providing links to MP3s that violate copyright laws. The most recent such letter was sent to the 20-employee company last week.

The multibillion-dollar recording industry, facing a host of new digital technologies that allow consumers to swap music in cyberspace, has been aggressively asserting copyright claims in an attempt to protect its lucrative turf.

Last month, a federal judge dealt a blow to Napster when it found that it was not entitled to protection against copyright infringement claims under the so-called "safe harbor" provisions of the Digital Millennium Copyright Act. The provisions were designed to protect Internet service providers, and will be an issue in the MP3Board case, according to legal experts.

In addition to suing Napster, the industry won a court order in April against MP3.com, finding the San Diego-based Web upstart violated record labels' copyrights.

But those cases were direct attacks on MP3 technology. The question in the MP3Board case is whether the recording industry can use the digital copyright law to shut down a Web site that offers an elaborate, detailed way for consumers to find MP3s.

The industry argues that the company is complicit in violating copyright laws, but MP3Board views itself as no more than a clearinghouse of information.

"I think it is an important and timely issue," said Mark Lemley, a professor of Internet and copyright law at the University of California-Berkeley. "It seems to me clearly linking itself can't be copyright infringement, regardless of what you link to. The question is whether they've done something to facilitate infringement by other people. It's a tough call."

Palo Alto attorney Mark Radcliffe, an expert on Internet copyright law, added: "No one has ever found that hypertext linking is copyright infringement. I think the case is fundamental and goes to the core of the way the Web operates."

The case has been assigned to U.S. District Judge Ronald Whyte, who has confronted a number of cutting-edge Internet copyright issues in the past, including a series of lawsuits filed by the Church of Scientology against former members accused of posting its secret teachings on the Web.




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