On January 18, Warner Bros. Records, Inc. and other record labels brought a copyright infringement lawsuit against SeeqPod, Inc., a music search engine that searches for playable audio and video content residing on the world wide web. Like any other search engine (such as Yahoo and Google), SeeqPod crawls, indexes, searches and displays search results; the content it crawls, indexes, searches and displays is hosted on other sites. The user is then able to stream the content found by SeeqPod by clicking on a link to the content on the SeeqPod interface; the content is not downloaded onto the user’s computer. Given the circumstances, the record labels may be facing an uphill battle.

Initially, search engines have been moderately successful in dismissing claims for direct copyright infringement. For example, the 9th Circuit in Perfect 10 v. Amazon.com et al. held that Google’s in-line linking of full-sized images hosted on other servers did not amount to direct copyright infringement. (The court in Perfect 10 opened the door as to whether such activity can amount to contributory copyright infringement, however, and that matter has yet to be decided by the district court upon remand.)

Secondly, the DMCA take-down provision provides a shortcut for plaintiffs to demand the removal of infringing content, and this shortcut allows for infringing content to be removed without a party having to resort to a lawsuit. However, as services such as SeeqPod become more robust and sophisticated in locating content on the web, and more and more infringing content becomes accessible to users as a result of these services, parties suffering infringements have become increasingly unhappy with the DMCA safe harbor scheme of contacting internet service providers directly to remove infringing content in each instance of infringement, as the content to be policed has become so voluminous. The SeeqPod case is yet another case that has been filed recently to challenge services that are arguably DMCA compliant. (Universal v. Veoh, Viacom v. YouTube, etc.)

The complaint in Warner v. SeeqPod notes that although SeeqPod describes itself as a search engine, SeeqPod “in fact targets a particular type of content – music – that SeeqPod knows is overwhelmingly copyrighted and posted without authorization from copyright owners.” Warner Bros. specifically accuses SeeqPod of knowingly using infringing material to increase its audience. However, in the DMCA scheme, and as the law stands now, an internet service provider does not “know” whether any particular material is infringing until it receives notice about specific instances of infringement or if a cursory glance on the internet service provider’s site shows obvious “red flags” such as words like “pirate” or “bootleg” indicating the site is hosting or providing access to pirated content. Corbis Corporation v. Amazon.com, Inc., et al., 351 F.Supp. 2d 1090 (W.D. Wash. 2004).

An online service provider acting as an “information location tool” such as SeeqPod is immune from liability if it “does not have actual knowledge that the material or activity is infringing” or “in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent.” And “upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.” 17 U.S.C. §512(d).

If SeeqPod’s take-down policy is compliant with the DMCA, then it appears that SeeqPod may be protected by the DMCA safe harbor provisions. However, this lawsuit is an effort to change the present approach of the law. The record label plaintiffs are trying to convince the court that SeeqPod should not be treated as a search engine, because the service is not just a search engine but “an unlawful music service that directly engages in, encourages, and facilitates the mass infringement of Plaintiffs’ and other intellectual property owner’ copyrighted works.”

Another possible reason why the plaintiffs have instituted this suit is to strong-arm SeeqPod into paying them license fees or entering into a revenue share agreement as part of a settlement, as Warner did with Imeem, a content sharing service, last year.