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AOL search-engine stance could strike chord

Industry Standard

(IDG) -- The decision by America Online to take down a month-old Internet search tool that enabled users to locate pirated music files in the MP3 format raises a question: Which side will the Internet heavyweight take in the larger battle over copyright protection in cyberspace?

AOL officials in Dulles, Va., decided late Wednesday to dismantle the MP3 search engine developed by its San Francisco-based Winamp division. They described the move as a business decision.

"We saw that we didn't have an efficient process for distinguishing between legal and illegal MP3s, and we decided to take it down," said AOL spokesman Jim Whitney.


The move comes at a time when members of the recording industry, including AOL's proposed acquisition target, media giant Time Warmer, are cracking down on online music piracy, hauling into court the Internet services that make it easier for users to find the music they want.

But the entertainment industry has yet to target ISPs and more general search engines because there is a gray area in new copyright laws: The courts have not reached a consensus as to whether the conduits of digital technology are liable for copyright infringement perpetrated by customers. Now AOL may be signaling the stance it will take after its merger with Time Warner is approved, which could be as soon as this fall.

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During the writing of the Digital Millennium Copyright Act of 1998, AOL lobbied Congress against holding ISPs and other conduits liable for copyright infringements by customers. The company won this provision in the law, over objections by the entertainment industry, but it came with the condition that such Internet services must establish copyright protection policies and must take action if infringements are reported.

AOL reacted Wednesday to media inquiries about Winamp, not inquiries from copyright holders, company officials said.

"AOL was part of a group of companies championing lower protection provisions of the copyright law," said Pam Samuelson, a law professor at the University of California at Berkeley. "But it's by no means an unlimited protection. As with other safe harbors, there are certain things one has to do to qualify for a safe harbor. Two of the more general provisions are that you have to have a copyright compliance policy and that, essentially, [you] not only don't try to aid infringement, but that you kick people off the system if they're using it for copyright infringement."

But the question still remains as to how this law would apply to search engines similar to the one AOL subsidiary Nullsoft developed for Winamp. That engine is an audio player that downloads digital music. Most of the major digital audio companies have developed or are developing similar search engines for MP3 files.

Jonathan Potter, executive director of the Digital Media Association, which represents some of these companies, said, "I don't think that anyone has suggested that the Winamp search engine is illegal."

The Recording Industry Association of America, or RIAA, has been taking legal action against Internet companies that make it easier for users to share pirated copies of digital music. Its high-profile case against Napster is a case in point. Meanwhile, Time Warner's Warner Music Group subsidiary is one of a number of recording industry giants that recently sued, another MP3 search engine, for copyright infringement. Time Warner is the parent company of At the same time, the RIAA has threatened to sue the Web portal Lycos, which launched its own MP3 search engine last year.

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