Legality of a website

[dan87]

What is the name of your state? Missouri


Yesterday i stumbled across this website - www.eye-tunes.net - which was set up just a few days ago. It seems very interesting and nice, but i was wondering wether or not the administrator is braking the law by linking to songs hosted online. The site is like an index to songs hosted on other sites. If you go to the site and click database at the top, a page of a bunch of songs, arranged in alphabetical order appears. If you click on a song, a new window opens up and the songs will start playing in that window. The problem is that if you right click on the song, you can download it to your hard drive. I'm just wondering wether this site is braking any rules by just linking users to songs hosted on other websites, which in their disclaimer it says they are not affiliated.

thanks

 

[divgradcurl]

What is the name of your state? Missouri


Yesterday i stumbled across this website - www.eye-tunes.net - which was set up just a few days ago. It seems very interesting and nice, but i was wondering wether or not the administrator is braking the law by linking to songs hosted online. The site is like an index to songs hosted on other sites. If you go to the site and click database at the top, a page of a bunch of songs, arranged in alphabetical order appears. If you click on a song, a new window opens up and the songs will start playing in that window. The problem is that if you right click on the song, you can download it to your hard drive. I'm just wondering wether this site is braking any rules by just linking users to songs hosted on other websites, which in their disclaimer it says they are not affiliated.

thanks

If the songs they are linking to are not legal, then I suppose that this site could be liable for vicarious or contributory copyright infringement. I'm not sure that there is any case law on this in the U.S., usually linking to a site that has links to infringing materialhas been found to be lawful, but if you can directly download from the site, that's different, and probably infringing.

 

[dan87]

i contacted the eye-tunes administrator and asked whether this is legal, and he told me he has absolutely no affiliation with the sites that host these songs, so he doesnt kno wether they are infringing or not. He also told me that he will get a script so that users can only stream music, not download it. That way, the songs will still be hosted on 3rd party websites, but users would not be able to download the songs from eye-tunes.net directly, they would only be able to stream them. Would taht make any difference?

 

[divgradcurl]

i contacted the eye-tunes administrator and asked whether this is legal, and he told me he has absolutely no affiliation with the sites that host these songs, so he doesnt kno wether they are infringing or not. He also told me that he will get a script so that users can only stream music, not download it. That way, the songs will still be hosted on 3rd party websites, but users would not be able to download the songs from eye-tunes.net directly, they would only be able to stream them. Would taht make any difference?

Yes it would -- it would make it MORE likely that the website would be found to be infringing. Streaming digital content requires licenses separate from those for downloading. Streaming a digital audio stream without the proper licenses is infringing on its own. Plus, the fact that "he doesn't know" whether or not the songs are legal is completely irrelevant -- there is no "intent" requirement in copyright law -- you don't need to "intend" to infringe. If infringement happens, it happens, whether you knew about it or wanted to do it or what.

Besides, I can also see a trademark lawsuit coming from Apple as well.

 

[dan87]

Would the copyright enfringement with Apple be from the domain being eye-tunes.net .. or from the design of the page having the ipod-like silhouette?

 

[divgradcurl]

Would the copyright enfringement with Apple be from the domain being eye-tunes.net .. or from the design of the page having the ipod-like silhouette?

This would be trademark infringement, not copyright infringement, and it could be predicated on both things listed, the domain name and the ipod-like silhouette.

Streaming or downloading the music would be infringing the copyrights of the owners of those songs.

 

[dan87]

The domain is not itunes though... it is just a similarly sounding domain. It is hyphonated and it has eye not i. Does their trademark expand to similar sounding names?

And also, one question: For the silhouette, I have seen many online reproduced like that. But this one does not have an ipod. How can you trademark just a black silhouette? And if it is original creation, not a copy of ipod silhoette.. would it still be copyright infringement?

Thanks a lot for the input, this is a learning experience for me, so I appreciate the help with information about copyright and trademarks!

 

[divgradcurl]

The domain is not itunes though... it is just a similarly sounding domain. It is hyphonated and it has eye not i. Does their trademark expand to similar sounding names?

Trademark covers names, logos, etc., that are the same, or "confusingly similar" to the trademarked name or logo. So, if "eye-tunes" is "confusingly similar" to "i-tunes," it would be infringing, even though it is not the same. The test for similarity is a multi-part test, where you look at a lot of factors and balance them to determine if two things are confusingly similar.

And no, disclaimers won't save you. And it's even worse if you put "i-tunes" or "apple" or something like that into metatags or hidden text for search engines, that will get you nailed in a heartbeat for trademark infringement.

And also, one question: For the silhouette, I have seen many online reproduced like that. But this one does not have an ipod. How can you trademark just a black silhouette? And if it is original creation, not a copy of ipod silhoette.. would it still be copyright infringement?

They may be able to trademark the "look and feel" of the ipod silhouette ad campaign. Then, it becomes a "confusingly similar" test again.

 

[dan87]

So would it be your oppinion that the "eye-tunes" would be "confusingly similar" enough to get a lawsuit from apple.

Also, how big would a site have to be to get attention from big companies such as Apple? Would it be worth their time to sue small communities that somewhat breach their copyright? I mean, what could they get from a small community that has no ads, no profit, nothing really except helpful content?

 

[The Occultist]

Yes, it would.

Whether or not they would take notice and do something about it is a question nobody can answer except Apple.

 

[divgradcurl]

So would it be your oppinion that the "eye-tunes" would be "confusingly similar" enough to get a lawsuit from apple.

I haven't looked into this enough to really have an "opinion," but it seems from my cursory analysis that Apple would be on solid footing if they decided to pursue this. Besides, even if they weren't on solid footing, they've got enough resources to make life pretty miserable for the website holder -- maybe not fair, but a fact of life.

Also, how big would a site have to be to get attention from big companies such as Apple? Would it be worth their time to sue small communities that somewhat breach their copyright? I mean, what could they get from a small community that has no ads, no profit, nothing really except helpful content?

As far as trademark infringement is concerned, trademarks are not only "use it or lose it," but are "defend it or use it." Trademark holders need to vigorously defend their trademarks, or they can lose the ability to enforce their marks. This is the same reason why McDonalds will sue to shut down lemonade stands and the like, or Disney will go after people making up fake Disney T-shirts -- it's not about the money, it's about retaining control over their trademarks.

As far as copyrights are concerned, the copyright holder can pick and choose who to sue, and failure to sue one person does not mean that they can't go after anyone else. But again, copyright holders aren't suing for money -- they are suing to send a message, and that message is if you infringe our copyrights, it's going to hurt you financially. The RIAA is currently suing college students and grandmas for downloading music over P2P networks -- do you think your friend is "too small" to get noticed by the RIAA?

 

[xDazedx]

removed and new thread started

 

[davezan]

Yes, it would.

Whether or not they would take notice and do something about it is a question nobody can answer except Apple.

And if Apple's lawyers see this thread, most likely they will.

 

[divgradcurl]

You know I was glad I happened by here today and saw this. This is similar to a site called www.singingfish.com that I have often wondered about. Primarily because some of my music is on there and I am not real pleased about it.

What this site does is sends bots across the internet to find *.mp3 extensions. Once located it appears a script ads it to their database and then it gets submitted to their website. There are manyartists on available for download on this site. Top top it off, they do not host the songs but leech them off the site they located them from. This way they avoid paying for bandwidth and I suppose it removes them legally from any wrong doing? I am surprised no one has gone after this site.

Not trying to steal the thread but I thought this was very similar to what you are seeing with this other site. Please move this post if you need to.

You should probably start a new thread with your question. Just open a new thread, and cut and paste this question there, and then it can be repsonded to without confusion as to what question people are responding to.