Search Engines and Directories

"Sorry, but I'm not going to jail over a web page."
--John Stiles, "About Distributing ROMs..."

Given the enormous size of the World Wide Web today, it can be a real challenge to find information pertinent to any given topic. Search engines and directories are provided to assist users in more quickly locating what is available on their subjects of interest. Such services are certainly beneficial, at least in general -- but what is to be made of those that provide links to largely illegal content? As CNN has reported, "Much of the music available online has been pirated" (Rob Guth, "Digital grunge? MP3.com adds indie record label to roster"). Similar information is available from ZDNet, which has indicated that "By far, the majority of music on the Internet is illegal copies" (Robert Lemos, "Judge puts Diamond's MP3 player on hold"). There is a wealth of MP3 search engines on the web, many of which locate pirated material. Similarly, some (but not all) emulation-related pages provide links to illegal video game ROM files. Regardless of whether such services actually host pirated material, they clearly seem to facilitate copyright infringement in a different way. By providing links to those who post ill-begotten content on the web, the search engines may be "enablers" of a sort, encouraging illicit activity.

What are we to make of these services? Indeed, they may be useful, but are they legal? If so, are they ethical? Because they may encourage -- or at least tolerate -- illegal content (despite efforts to "filter out" improper sites), search engines and directories raise questions regarding the role of technology in copyright infringement.

In 1998's "Digital Millennium Copyright Act," significant legislation was passed pertaining to the protection of copyrights given the current state of the Internet. Much of this legislation is highly relevant to the discussion at hand. The following two quotes come from "The Digital Millennium Copyright Act of 1998, U.S. Copyright Office Summary," released in December 1998 and available through a link on the United States Copyright Office's home page.

The first quote is from page 10 of the summary.

"In order to qualify for [the] limitation [on "transitory communications"], the service provider's activities must...be carried out by an automatic technical process without selection of material by the service provider."

The second quote is from pages 12 and 13 of the summary.

"Section 512(d) relates to hyperlinks, online directories, search engines and the like. It limits liability for the acts of referring or linking users to a site that contains infringing material by using such information location tools, if...the provider [does] not have the requisite level of knowledge that the material is infringing [and] upon receiving a notification of claimed infringement, the provider...expeditiously [takes] down or [blocks] access to the material."

As the first quote indicates, in order for a service provider (which presumably includes those providing search and directory services) to be exempt from certain types of liability, the provider must use predominantly automated means of operation. Because such types of automation are frequently employed in the creation and maintenance of search-related databases, those services would generally be protected under the safeguards mentioned in the second quote. However, directories and similar pages of links involve a much greater degree of human involvement. Michael Robertson brings up an important question in this case: "Does a content provider who knows that the vast majority of their links are unauthorized have an obligation to remedy that situation?" (Michael Robertson, "Lycos Gets Into MP3 Hot Water").

One of the most current controversies revolves around the MP3 search engine recently made available by Lycos. According to one recent article, the significance of this engine is that "it [represents] the first time a top tier portal [has] embraced the MP3 movement" (Robertson). Robertson, the author of the article, goes on to mention some of the "features" of the search engine, several of which are questionable in nature. One of his examples involves the hourly updates of Lycos' MP3 database. He explains that this practice has a potentially "sinister explanation" in that it could be "designed to facilitate copyright infringement" (Robertson). In fact, it remains a problem in spite of information released in a CNN report stating that "The [Recording Industry Association of America]...forced Lycos to promise it wouldn't link to any pirated MP3 files" (Lessley Anderson, "MP3 is Web's newest craze"). This may be because, apparently, Lycos has not lived up to its promise. In his article, "Lycos Gets Into MP3 Hot Water," Robertson states the following:

"Normally search engines can argue that they have no way of knowing whether any item that they link to is infringing [because] they are typically automatically indexing content to which other people have provided the links. Conversely, Lycos claims that it 'has a team of people looking for MP3 files all over the Internet' [which] suggests it is actively seeking out the suspect sites to catalog as opposed to passively and blindly indexing sites submitted to them."

If this is in fact the case, Lycos seems to be in clear violation of the stipulations given in the above quote from "The Digital Millennium Copyright Act of 1998, U.S. Copyright Office Summary." Robertson goes on to provide a discussion of how what Lycos has done fits into the context of current copyright law.

He states that "Several legal rulings including court cases and a law have declared service providers a safe haven from liability for copyright violations under most circumstances," but that "Due to Lycos' implementation, they may have crossed the line with their MP3 search engine effort to where new rules apply" (Robertson). What has Lycos done that could cause its MP3 service to fall outside the bounds of "normal" search engines? Robertson argues that its operation could involve both knowledge of and participation in copyright infringement -- two conditions that, if proven, may cause Lycos to "incur liability for 'contributory infringement' of a copyright" (Robertson).

As such, it sems apparent that Lycos could face legal repercussions if it fails to alter its current methods of locating and providing links to illegal MP3s. Nevertheless, there are those who have already "cleaned up their acts," so to speak.

As with MP3s, there are those who have set up pages of links providing access to the copyrighted ROM files that can be run by software-based emulators. However, due to the legal actions taken by the copyright holders (and discussed in detail on the "Emulation" portion of this site), many sites no longer offer such links. On the well-known emulation.net site, John Stiles writes:

"For [numerous] reasons, emulation.net cannot distribute ROMs for some emulators, or support sites that serve only to hold ROMs...If you really want ROM images for an emulator, try using Altavista or Excite" (John Stiles, "About Distributing ROMs...").

Note that Stiles recommends Altavista and Excite to ROM-searchers. Both of those services are based primarily on the sort of "mindless" indexing protected by the provisions of the Digital Millennium Copyright Act.