Can Hosting Illegal Music Links Be Legal?

Defendants deliberately refuse to take any meaningful steps to deter the rampant infringement on their Web sites, even though they have the ability to do so.

- EMI, in a lawsuit against the SeeqPod and Favtape music sites

In Wendy Davis, "EMI Sues Music Search Engine, On-Demand Site," Online Media Daily, February 25, 2009

The record label EMI is suing music search engine SeeqPod, music-on-demand site Favtape, and the companies' investors for copyright infringement. EMI says that the two are helping consumers to procure copyrighted music that is circulating on the web illegally. The activities of the sites, however, raise difficult issues regarding the definition of copyright infringement. According to the Digital Millennium Copyright Act's, even websites that host materials found to be violating copyright are not liable if they take off the material as soon as they find out. Courts have tended to safe harbor provisions might protect even companies that host infringing material from liability, provided they remove it in response to takedown requests. Links to unlawful material would also seem to be exempt until the firms posting the links are notified they should not be there.

The record label's executives contend, however, that SeeqPod and Favtape know that many of their links are to illegally versions of songs, and that this knowledge should make what they are doing illegal. They further contend that sites that legally license the label's music are being harmed by the existence of Seeq and Favtape.

SeeqPod already faces a separate copyright lawsuit by Warner Music, filed in January 2008. Both cases raise an important issue that will help shape the ability of the music labels to control their music online.