Year in Review: Search Engines

A number of new music related search engines launched in 2008 and changes were made to existing search engines which enhance access to music. A number of lawsuits were also commenced by the content industry alleging that music focused search engines are in breach of copyright law.

Search Engines
FilesTube is a new search engine which crawls the internet for music files that are hosted on third party sites to facilitate direct downloading.[1] The search engine, run by Red Sky LLC, has a database of 40 million media files with 5 million users per month.[2] The operators do not host any of the files and state that they are doing their best to ensure they only serve legal copies by deleting links that relate to illegal content.[3] When a user is unable to find the file they are after they can enter an email address and receive notification once the content has been located.[4]

Searchme is a visual search engine which launched a free music streaming service in October 2008.[5] Users are able to listen to an unlimited number of tracks and the site provides links to buy content from Amazon.[6]

The Yahoo search engine now provides access to songs within the Rhapsody catalogue and allows Rhapsody subscribers unlimited streams of all tracks.[7] Non subscribers are able to stream up to 25 tracks a month.[8]

Google China – Top100.cn was launched in August 2008 to compete with Baidu’s music search service.[9] The service is reported to have the cooperation of several major record labels.[10]

Lawsuits
In Parker v. Yahoo, Inc., 2008 WL 4410095 (E.D. Pa. Sept. 25, 2008), a case heard in the US District Court, it was held that cached (archived) copies of copyright material by search engines are not a breach of the exclusive rights of the copyright holder.[11] The court held that an implied license exists when material is uploaded to the internet permitting search engines to make copies and allowing users to access the material through search links.[12]

Project Playlist, a search engine which enables users to produce playlists by linking content hosted on multiple third party sites together without hosting any infringing files was sued for facilitating copyright infringement by nine record labels in April 2008 in the US District Court in Manhattan.[13] Files can stream through the service by users and it is this process which some argue sets the service apart from a standard search engine and which may open the door to legal liability.[14] It was reported that at the time the legal action was commenced the site had a user base of 24 million people with 600,000 unique visitors per day, 9.5 million page views per day and grew more than 200% in 2007.[15] The site is ad supported and claims to pay royalties to music publishing collection agencies BMI, ASCAP and SESAC.[16] The operators claim that their service has many legal uses as well as illegal ones.[17]

Seeqpod, a music focused search engine which also gathers links third party websites was sued in 2008 by Warner Music.[18] The site allows users to stream the content and store it for later use however the songs cannot be downloaded.[19] The company claim that they are protected from liability for copyright infringement under the DMCA.[20]

Baidu was reported as having a 70 percent market share in China largely owing its success to its MP3 music search service which is ad supported.[21] Following the loss of a case against the search engine in 2007, in February 2008 the IFPI on behalf of the record labels commenced legal action against the search engine for facilitating copyright infringement seeking damages of $US9 million.[22] Baidu is being sued by Universal Music Ltd, Sony BMG Music Entertainment Hong Kong Ltd and Warner Music Hong Kong Ltd in the Beijing No.1 Intermediate People’s Court for copyright infringements relating to 127 songs and are seeking the maximum damages of RMB 500,000 ($US71,000) per song – RMB 63,500,000 or $US9 million.[23] In separate legal action against Baidu the Music Copyright Society of China has also filed a suit for deep linking to illegal files seeking $1 million yuan or $US140,000 for breaching copyright on 50 songs.[24] One report suggests that despite claims of not hosting content and only linking to third party sites, that the search engine is actually actively hosting content in a complex network of websites that are inaccessible to other search engines and which are repeatedly relocated when take down notices are received.[25]

[1] ZeroPaid, ZeroPaid Interviews FilesTube - a Web Search Tool for Files (21 October 2008) <http://www.zeropaid.com/news/9812/ZeroPaid+Interviews+FilesTube+-+a+Web+Search+Tool+for+Files> at 22 October 2008
[2] ZeroPaid, ZeroPaid Interviews FilesTube - a Web Search Tool for Files (21 October 2008) <http://www.zeropaid.com/news/9812/ZeroPaid+Interviews+FilesTube+-+a+Web+Search+Tool+for+Files> at 22 October 2008
[3] ZeroPaid, ZeroPaid Interviews FilesTube - a Web Search Tool for Files (21 October 2008) <http://www.zeropaid.com/news/9812/ZeroPaid+Interviews+FilesTube+-+a+Web+Search+Tool+for+Files> at 22 October 2008
[4] ZeroPaid, ZeroPaid Interviews FilesTube - a Web Search Tool for Files (21 October 2008) <http://www.zeropaid.com/news/9812/ZeroPaid+Interviews+FilesTube+-+a+Web+Search+Tool+for+Files> at 22 October 2008
[5] CNet News, Searchme tries music streaming to attract users (20 October 2008) <http://news.cnet.com/8301-17939_109-10070614-2.html> at 22 October 2008
[6] CNet News, Searchme tries music streaming to attract users (20 October 2008) <http://news.cnet.com/8301-17939_109-10070614-2.html> at 22 October 2008
[7] ArsTechnica, Yahoo hopes to boost search fortunes with new music search (19 September 2008) <http://arstechnica.com/news.ars/post/20080919-yahoo-hopes-to-boost-search-fortunes-with-new-music-search.html> at 21 September 2008
[8] ArsTechnica, Yahoo hopes to boost search fortunes with new music search (19 September 2008) <http://arstechnica.com/news.ars/post/20080919-yahoo-hopes-to-boost-search-fortunes-with-new-music-search.html> at 21 September 2008
[9] ZeroPaid, Google Launches Free Music Service in China (10 August 2008) <http://www.zeropaid.com/news/9691/Google+Launches+Free+Music+Service+in+China> at 12 August 2008; Digital Music News, Google Launches Ad-Supported Chinese Music Search (6 August 2008) <http://www.digitalmusicnews.com/stories/080508google> at 7 August 2008; TechDirt, Google Wants To Launch MP3 Search In China (1 August 2008)<http://www.techdirt.com/articles/20080801/1714001868.shtml> at 6 August 2008
[10] Digital Music News, Google Launches Ad-Supported Chinese Music Search (6 August 2008) <http://www.digitalmusicnews.com/stories/080508google> at 7 August 2008
[11] Technology & Marketing Law Blog, Search Engine "Cache" Function Covered by Implied License--Parker v. Yahoo (16 October 2008)<http://blog.ericgoldman.org/archives/2008/10/search_engine_c.htm> at 16 December 2008; TechDirt, Search Engine Cache Isn't Copyright Infringement (24 October 2008) <http://www.techdirt.com/articles/20081017/0150532568.shtml> at 27 October 2008
[12] Technology & Marketing Law Blog, Search Engine "Cache" Function Covered by Implied License--Parker v. Yahoo (16 October 2008)<http://blog.ericgoldman.org/archives/2008/10/search_engine_c.htm> at 16 December 2008; TechDirt, Search Engine Cache Isn't Copyright Infringement (24 October 2008) <http://www.techdirt.com/articles/20081017/0150532568.shtml> at 27 October 2008
[13] Digital Music News, Project Playlist: Another Lopsided Settlement Ahead? (12 May 2008) <http://www.digitalmusicnews.com/stories/051108playlist> at 21 May 2008; TechDirt, RIAA Now Decides That Not Enough People Have Heard Of Project Playlist (29 April 2008) <http://www.techdirt.com/articles/20080428/194905972.shtml> at 2 May 2008; ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008; New York Times/Reuters, Record Companies Sue Project Playlist on Copyright (28 April 2008) <http://www.nytimes.com/reuters/technology/tech-suit.html?_r=1&oref=slogin> at 30 April 2008; Digital Music News, Project Playlist Hauled Into Court; Majors Allege Massive Infringement (29 April 2008) <http://www.digitalmusicnews.com/stories/042808playlist> at 30 April 2008
[14] ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008
[15] ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008; New York Times/Reuters, Record Companies Sue Project Playlist on Copyright (28 April 2008) <http://www.nytimes.com/reuters/technology/tech-suit.html?_r=1&oref=slogin> at 30 April 2008
[16] ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008
[17] ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008
[18] Digital Music News, Project Playlist Hauled Into Court; Majors Allege Massive Infringement (29 April 2008) <http://www.digitalmusicnews.com/stories/042808playlist> at 30 April 2008
[19] Digital Music News, The Seeqpod Secret: Simple Searching, Serious Files (23 January 2008) <http://www.digitalmusicnews.com/stories/012408seeqpod> at 30 January 2008
[20] Digital Music News, Warner Music Lawyers Roll Again, Seeqpod Latest Target (23 January 2008) <http://www.digitalmusicnews.com/stories/012308wmg> at 30 January 2008; TechDirt, Warner Music Sues Seeqpod: How Dare It Help People Find Stuff Warner Wishes Didn't Exist (25 January 2008) <http://www.techdirt.com/articles/20080125/01330469.shtml> at 30 January 2008
[21] The Register, China's nonstop music machine (13 September 2008) <http://www.theregister.co.uk/2008/09/13/baidu_investigation/> at 21 September 2008; Digital Music News, Baidu Back On the Burner: Tough Talk Continues (5 June 2008) <http://www.digitalmusicnews.com/stories/060408baidu > at 6 June 2008
[22] The Register, China's nonstop music machine (13 September 2008) <http://www.theregister.co.uk/2008/09/13/baidu_investigation/> at 21 September 2008; ZeroPaid, Google Launches Free Music Service in China (10 August 2008) <http://www.zeropaid.com/news/9691/Google+Launches+Free+Music+Service+in+China> at 12 August 2008; Digital Music News, Baidu Back On the Burner: Tough Talk Continues (5 June 2008) <http://www.digitalmusicnews.com/stories/060408baidu > at 6 June 2008; TechDirt, Record Labels Keep On Trying: Sue Baidu For Copyright Infringement Yet Again (5 February 2008) <http://www.techdirt.com/articles/20080205/084632179.shtml> at 7 February 2008; ArsTechnica, IFPI sues Baidu, Yahoo China over deep linking MP3s (5 February 2008)<http://arstechnica.com/news.ars/post/20080205-ifpi-sues-baidu-yahoo-china-over-deep-linking-mp3s.html>
[23] Digital Music News, Labels Cranking Legal Heat In China... Again (8 April 2008) <http://www.digitalmusicnews.com/stories/040808china> at 13 April 2008; ZeroPaid, IFPI Suing Major search Engine for $9 Million (8 April 2008) <http://www.zeropaid.com/news/9390/IFPI+Suing+Major+Search+Engine+for+%249+Million> at 8 April 2008
[24] ArsTechnica, Labels seek billions in damages over Baidu MP3 deep-linking (7 April 2008) <http://arstechnica.com/news.ars/post/20080407-labels-seek-billions-in-damages-over-baidu-mp3-deep-linking.html> at 8 April 2008; The Register, Baidu sued by Chinese copyright group (3 March 2008) <http://www.theregister.co.uk/2008/03/03/baidu_sued_chinese_copyright_society/> at 5 March 2008; Digital Music News, Baidu Faces Chinese Rebellion, More Lawsuits Fly (3 March 2008) <http://www.digitalmusicnews.com/stories/030208china> at 4 March 2008; Yahoo News UK/Ireland, Chinese music industry groups file suit against Baidu (28 February 2008) <http://uk.news.yahoo.com/rtrs/20080228/tot-uk-baidu-lawsuit-copyright-566e283.html> at 29 February 2008
[25] TechDirt, Baidu Expose Suggests That It's A Lot More Involved In Music Downloads Than It Lets On (15 September 2008) <http://www.techdirt.com/articles/20080915/0150502269.shtml> at 21 September 2008