Qbox throws two copyright-related questions

I once blogged on Qbox.com service in December 2005. here. The concept was pretty new and interesting at the time. The site could duly be called a music aggregator, by which one can garble all music sources available on the web and listen to them in an orderly way.

The same guys are opening a new service that is mainly targeted to the English speaking users. See Tatter and Company CEO’s comment on the service at Web 2.0 Asia :: Qbox takes music search to a whole new level

There are two features that may be of interest to copyright lawyers.

One, Qbox is a music metacrawler. In other words, it is a search engine specifically for music sources. As of now, the site crawls YouTube and MySpace, but it won’t take much time until it starts to crawl other sites as well.

Two, Qbox’s Music Marker feature offers an upgraded experience in internet music search and listening. You need to install Qbox Toolbar to use this feature. You will see three icons on the Toolbar. After done with installation, visit a webpage that contains an album name, song title, or an artist name. On the page, you click the Emotional Link icon on the Toolbar (it looks like a snowman) and you will see snowman icons appear next to each word that is or might be an album title, song title, or an artist name.

The first function is raises the good old fashioned search engine liability issues. Qbox search engine metacrawls YouTube and MySpace. Does metacrawling creates copyright liability? No. It’s been well settled that metacrawling per se doesn’t raise copyright liability. But it may/does raise common law liability of trespass in some jurisdictions. That is, once YouTube or MySpace decides to refuse Qbox search engine to metacrawl their site, they will do it on the basis of trespass. They may also block Qbox search engine based on breach of contract. The strength of Qbox doesn’t seem to lie in the fact that they metacrawl YouTube and MySpace but is in the fact that all in all the site offers a new experience in music listening on the internet. Once YouTube or MySpace blocks Qbox metacrawling, Qbox just may as well enter into a license agreement with them or find other sources.

The second feature is quite interesting. If you have been in the internet biz or copyright law practice for a while, you might probably have heard of Third Voice. Third Voice and the ‘overlay’ debate has been hot in 1998 but it has remained as academic interest ever since. Third Voice is a post-it type of service that lets users put their comments on a new article or other web pages and share it with other Third Voice users. Put in paper book analogy, the site is kind of a library that lets (or encourage) users to put sticky with comments on pages of a book and fastly circulate the book among users so that they add to or edit the sticky. On internet, it’s widely called an ‘overlay.’

Before answering whether an ‘overlay’ service creates copyright liability, it should be noted that more and more sites and add-ons to browsers look like Third Voice. A commentator analogized Firefox extension Greasemoneky with Third Voice in that Greasemonkey changes the javascripts on a web page and changes the way a page is viewed. Broadly speaking, any web service or add-ons that change the way a site is viewed may be subject to the same kind of argument to which Third Voice was put to. This issue got more complicated after the Grokster case (Grokster complicates every internet copyright issues, doesn’t it?)

Does the ‘overlay’ function of Third Voice create copyright liability?

Does Greasemonkey create copyright liability?

Does Qbox Emotional Link create copyright liability?

These three questions are slightly different from each other but undergoes pretty much the same analysis.

The first question one gets to ask is, “Where is the direct infringement?” In order for there to be a copyright infringement, there’s gotta be direct infringement. And the direct infringement in these cases occur at the end user side.

End users install Qbox Toolbar and opens a web site and clicks the Emotional Link button and see the snowman icons attached in some positions on a page. When the user clicks the icon, a pop-down menu shows and the user can intuitively use the functionality.

At what point does the user infringes upon the copyright of the page?

A very cautious copyright lawyer will point out that the user infringes copyright once he clicks the Emotional Link icon and changes the shape of the page. The theory being, by opening the page, the user is under personal, non-transferrable, royalty-free license to view the page without modifying the page. By clicking the EL icon and changing the page, the users goes over the scope of license and thus he reproduces and prepare for derivative works without permission.

Once direct infringement holds up, secondary liability analysis will follow.

But I seriously doubt that the direct infringement theory will hold up. Most of the pages look different under different web browsers. Do we infringe upon copyright by using different web browsers and change the way the site is viewed?

I looked through the CYBERIA email list for the Third Voice debate and no conclusion was made on the direct infringement issue. Commentators leave the issue open and move on to the secondary infringement issues. (because secondary infringement issues are worth writing after Grokster) So, the answer is still up in the air.

I’m on the side that there is no direct infringement. Does anyone differ?

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