Despite the fact that the Ninth Circuit Court of Appeals granted Napster a stay on Friday, Scour.net seemed ripe for a similar brow beating at the hands of the recording industry after Judge Marilyn Patel all but dismantled the arguments both companies are expected to use.
The Scour website offers a multimedia search engine along with its Scour Exchange file trading application that allows users who download the program to trade files with others on the network.
When Judge Patel shot down Napster’s multi-tiered defense, Scour –- which is expected to use the same defense –- looked like it might be next in line to get closed.
Despite deals with Miramax and Hollywood Records that allowed Scour to legally distribute certain copyrighted materials, on July 20 the motion picture industry and the recording industry filed an infringement suit against the company.
“We still stand by what we offer, (it’s) a legal service,” said Dan Rodrigues, president of Scour. “When we built Scour Exchange, we studied all of the laws that we would need to follow. We feel that the Digital Millennium Copyright Act was very specific on what you are responsible for doing as a search tool provider. We have a Draconian in-user license that is very clear what users can and cannot do with copyrighted materials on the service.”
Using the shielding of the DMCA might be the first line of defense for the company. Napster failed to meet many of the requirements of a search engine, including not posting a copyright violation policy, which could have protected the company from the recording industry’s lawsuit. Instead, Napster looked for protection as an ISP, which Judge Patel ruled was not applicable.
“Scour can raise the DMCA defense, which Napster lost because they did not have the appropriate agreements in place,” wrote Mark Radcliffe, a partner at the Silicon Valley law firm Gray Cary Ware & Freidenrich, in an email. “The court could also find that unlike Napster, Scour has ‘substantial, non-infringing uses’ which would make the Sony Betamax defense available since this issue is very fact intensive and focused on the particular company.”
The 1984 Betamax case said in part that VCRs could not be banned because the products had uses other than piracy. In Judge Patel’s ruling, she dismissed that defense for Napster –- although the issue could very easily be revisited in another court.
“I am not convinced that Napster has been trounced as some others may be,” copyright lawyer Whitney Broussard of Selverne, Mandelbaum & Mintz, wrote in an email. “Judge Patel has, it seems, rewritten the Betamax decision such that a developer of a copying technology now has a duty to ensure that the technology is not used to make copies of copyrighted materials, regardless of whether or not the copy may be protected by principles of fair use. I am not so sure that this ruling will be upheld in the Court of Appeals, or the Supreme Court, if it goes that far.”
A big point in Scour’s defense is the lack of any smoking gun, such as the emails from Napster’s teenage founders that talked very openly about piracy and taking down the recording industry. According to a legal source, the intent of the founders is fair game in determining the fate of a technology.
“That might be a very important for Scour to bring up in their defense, which Napster could not do,” said Jeff Schwartz, intellectual property lawyers with the Washington law firm McKenna & Cuneo, L.L.P. “I think the intent matters to the extent that it alters the fact contents of the case. This isn’t a matter of law, this is a matter of determining whether this technology allows for non-infringing uses.”
Rodrigues said his company has been meeting with the major labels and the motion picture industry to develop business models where all of the interested parties can work together.
“The idea has been to get the companies testing the waters,” said Rodrigues. “We’d like to take this technology and make it a distribution platform for content owners. So we’ve been identifying the key technology pieces, we came in the door and said we believe your artists should get paid for your music and lets construct a model around this.”
Unlike other high-profile copyright cases such as Napster and MP3.com, Rodrigues believes that his company has positioned itself in such a way that neither of the major entertainment organizations have developed an antagonistic relationship with Scour. That could render the court process much less painful for Scour.
“We have intentionally not created a high profile for ourselves and been antagonistic to the industries,” Rodrigues said. “When we went to these companies, we told them they we wanted to be the technology solution for their concerns. Right now, they prefer the litigation strategy, but I hope this is just part of the negotiation process.