AOL-TW Suit 'A Stretch,' Admits MP3Board Lawyer

An attorney for MP3Board, an online search engine that helps Web users find MP3 music files for free download, acknowledged today that the company's lawsuit against America Online and Time Warner, is perhaps a bit of a legal stretch. filed a so-called third-party complaint against AOL and Time Warner in New York's Southern District US Court late Monday as part of an ongoing dispute between MP3Board, the Recording Industry Association of America and 14 major music labels. The suit provoked a counter-complaint from the company against the music industry.

This newest MP3Board complaint states that if MP3Board is to be found guilty of copyright infringement by the music industry for directing people to MP3 files by way of automated hyperlinks, then so too must AOL and Time Warner be found guilty. The prospective merger mates, MP3Board insists, are responsible for creating one of MP3Board's primary link destinations - the peer-to-peer file-swapping service Gnutella.

It is indeed a stretch to make such a claim, said San Rafael, Calif., attorney Ira Rothken, lawyer for But it only underscores how far the music industry is stretching to shut down his client's business, he said.

Rothken said that finding Gnutella at fault is not the real point of the claim. He said that the lawsuit, which in legal terms is known as a "claim for indemnity and contribution," actually seeks to get a court to declare that it is legal to own and use Gnutella's peer-to-peer file sharing program.

"In our underlying claim," Rothken said, "we are asking the court to declare that Gnutella and interfacing and searching (with) Gnutella are lawful. If it comes about that the court finds we were wrong and it's not lawful, that's when our claim for indemnity becomes very important. That's where we ... say, 'All right, if you find us unlawful, please allocate liability and damages between us and the parties that were intimately involved in creating and disseminating (Gnutella), and doing nothing to take it back or destroy what they had already put out into the society. That would be AOL and Time Warner."

For its part, AOL has long disavowed any involvement in the development of Gnutella. The company has said from the time that Gnutella was launched that it was the unauthorized creation of an AOL subsidiary, Nullsoft, and that AOL itself has not supported nor endorsed the peer-to-peer program's development.

Rothken, while defending use of Gnutella as legal, scoffed at AOL's long-standing argument.

"They are responsible for the acts of their agents," he said. "It would be like a top-level executive at IBM releasing a virus and not holding IBM liable. It may be that some of AOL's management disagreed with others who worked for AOL (who were) disseminating it. But that doesn't matter. AOL is responsible because it was their employees - and top-level employees - who disseminated it, and did nothing to take it back."

He added, "When they disseminated it, they had copyrights in it, they could have taken a temporary restraining order against those who tried to use it. But like a toxic substance, they just released it into the air, and they tried disowning it. And that was improper."

Whitney Broussard, a digital music media attorney whose clients include record labels and recording artists, said the case against MP3Board - a service that functions much as a search engine - is a disturbing one. He likened it to the Motion Picture Association of America (MPAA) case against online hacker publication 2600 Magazine, which alleged that publisher Eric Corley violated the Digital Millennium Copyright Act (DMCA) when 2600's Web site carried or supplied links to software capable of decrypting Content Scrambling Systems (DeCSS). Last week, a court ruled in the movie industry's favor against 2600.

It's unlikely that AOL will be held so responsible in court, MP3Board attorney Rothken said. "But we have to bring that kind of claim," he said, "even if we believe that Gnutella is lawful."

The company's complaint against AOL and Time Warner is also available as a PDF file at

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