Latest Test for DMCA Safe Harbors: Warner Sues SeeqPod
This is the latest in a string of lawsuits against Web 2.0 companies. Together, the suits represent an attack by the entertainment industry on the DMCA safe harbors that protect hosting services and search engines. Other similar cases have been filed against YouTube, MP3Tunes.com, Veoh, PornoTube, and Divx/Stage 6.
The SeeqPod case is different, however, because it is among the first that directly tests how copyright law applies to search engines. Despite the success of search engines like Yahoo and Google, there has been remarkably little case law developed on the copyright front. Part of the reason is because Congress stepped in with the DMCA safe harbors in 1998, creating some degree of certainty where the background legal concepts (e.g., contributory infringement) did not. In addition, by endorsing a notice-and-takedown regime, the DMCA safe harbors created a solution for many copyright owners that is cheaper than litigation.
But now, as search engines become more specialized and capable, certain copyright owners have become increasingly dissatisfied with the notice-and-takedown bargain struck in the DMCA. That's what these lawsuits are really about -- the defendants are complying with the letter of the law, but copyright owners are now trying to change the rules in court.
Of course, the SeeqPod case may settle (as a similar case brought by Warner against iMeem did). But the copyright issues will not be going away anytime soon (in particular, keep your eye on the remand in the Perfect 10 v. Google case, where the DMCA safe harbor issues may take center stage).
UPDATE: LA Times reporter Jon Healey has an interesting post about the case over at his Bit Player blog, suggesting that SeeqPod is unfairly trying to evade royalty obligations that its competitors must pay. We spar more over this in the comments over there.