Music Web Site Sues AOL, Time Warner, Saying Firms Fostered Online Piracy

A lesser-known Internet music site under legal attack from the record industry fired back with a suit of its own Monday, accusing America Online Inc. and Time Warner Inc. of contributing to online music piracy by unleashing the song-swapping software known as Gnutella.

The complaint, filed in U.S. District Court in New York by MP3Board Inc., argues that proposed merger partners AOL and Time Warner deserve much of the blame for the rash of online music piracy because an AOL subsidiary created Gnutella.

The suit was seen as a clever but questionable legal move by MP3Board, a Santa Cruz company that is trying to fend off a copyright infringement claim filed earlier this year by members of the Recording Industry Assn. of America.

In its filing, MP3Board argues that it is not guilty of copyright infringement. But it goes on to argue that if it loses the suit, AOL and Time Warner should help shoulder any penalties because of their indirect role in creating Gnutella.

MP3Board functions as a search engine, pointing users to music files stored across the Net, including bootleg tunes available through Gnutella servers. Gnutella is second only to Napster among the millions of people swapping songs on the Internet.

AOL severed its ties to Gnutella hours after it was released this year. But beyond that, “they did nothing to take it back. All they’ve tried to do is distance themselves from it,” said Ira Rothken, MP3Board’s attorney.

Officials from America Online and Time Warner could not be reached for comment late Monday.

MP3Board is not nearly as popular as Napster and other services, but like them it helps Internet users find songs on the Net. In its Monday filing, MP3Board asked a federal judge to make Time Warner and AOL co-defendants in the recording industry lawsuit it faces. The company is also seeking to make Time Warner and AOL liable for any damages MP3Board is ordered to pay if it loses the case.

Employees of an AOL subsidiary created the core technology behind Gnutella, a file-sharing tool that takes the Napster concept one step further: It allows users to trade any kind of file, whether it’s music, video or text. The employees posted the program’s code briefly on the Internet, but AOL deemed the program an “unauthorized freelance project” and yanked the data offline. But it was too late, and like a computer virus, Gnutella has since spread everywhere.

Fourteen record companies filed a suit in late June against MP3Board. The record labels insist that MP3Board, merely by linking to pirated music files on other sites, is violating copyright laws. But the firm claims that it is merely a clearinghouse for information--just like search engines Yahoo and Lycos--and is therefore protected by federal law.