Feeds

Texas court bans deep linking

Deeply disturbing, Google lawyer says

Next gen security for virtualised datacentres

A court in Dallas, Texas has found a website operator liable for copyright infringement because his site linked to an 'audio webcast' without permission. Observers have criticised the judge for failing to understand the internet.

Robert Davis runs Supercrosslive.com and put direct links on his site to audio streams of motorcycle racing. Those streams were created, owned and hosted by SFX Motor Sports, which is behind some of the events covered.

A preliminary injunction was granted on 12th December by Judge Sam Lindsay in the US District Court for the Northern District of Texas. Judge Lindsay followed that ruling with a summary judgment for SFX on 9th January, leaving only damages to be determined at trial, on the same day that Davis filed an appeal against the December ruling.

Judge Lindsay ruled that Davis's activity infringed copyright and curtailed the ability of SFX to sell advertising and sponsorship on its site. That advertising is displayed when the audio streams are listened to from the SFX site but not when they are linked to from Davis's.

In fact the December opinion was unclear on the exact nature of Davis's activity. SFX asserted that "Davis 'streams' the live webcast of the races on his website in 'real time'". Davis denied streaming but admitted to "providing an audio webcast 'link' to the racing events on his website". Judge Lindsay appears to accept that Davis is only linking to a media file, not streaming content from his own site.

"The live broadcasts of the racing events, either via television, radio or internet webcasts, constitute original audiovisual material that can be copyrighted under the Copyright Act," wrote Lindsay in his December opinion. "The court finds that SFX has shown a substantial likelihood of succeeding on the merits of its copyright claim against Davis because SFX has shown ownership of the material and 'copying' by Davis."

Davis argued that he did not actually copy any material, he only provided a link to it which opened the material in a user's media player, but the court ruled that that link broke the law.

"The court finds that the unauthorized 'link' to the live webcasts that Davis provides on his website would likely qualify as a copied display or performance of SFX’s copyrightable material," said Lindsay. "The court also finds that the link Davis provides on his website is not a 'fair use' of copyright material as Davis asserts through his Answer."

Judge Lindsay did not look to other cases on deep linking, being hyperlinks that target something other than a website's homepage. Instead, he looked at cases on live television broadcasts. He compared Davis's actions to those of a company sued by the NFL for the unauthorised capture and satellite transmission of live football broadcasts to viewers in Canada. Finding infringement, that court said a public performance or display, for the purposes of the Copyright Act, "includes each step in the process by which a protected work wends its way to its audience."

The opinion and summary judgment prompted one blogger, James Robertson, to accuse Judge Lindsay of having "no idea how the internet works". Davis was representing himself in his case, without the assistance of a lawyer. Perhaps guided by comments from various bloggers (including William Patry, Senior Copyright Counsel at Google, who called it "a deeply disturbing case"), Davis's appeal argues that since the December ruling he has "become familiar with" a 2000 decision on deep linking.

"Had this court been aware of this prior decision, Defendant believes this court may have produced a different ruling," wrote Davis in his latest motion of 12th January, which asks the court to stay the order of 11th December pending his appeal (though it makes no reference to the Summary Judgment handed down three days earlier). The case to which he refers is the dispute between Ticketmaster Corp. and Tickets.com.

Tickets.com, a seller of tickets, was sued for linking to pages on Ticketmaster's website where users could find tickets not available at Tickets.com. The US District Court for the Central District of California concluded: "hypertext linking [without framing] does not itself involve a violation of the Copyright Act … since no copying is involved."

That court went on to describe the process of hypertext linking: "The customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently."

However, if an appeal is heard, unless Davis's site made clear that the target file was being served by another website, SFX may be able to distinguish its circumstances from those of Ticketmaster.

Davis's site has become a repository for court documents and links to coverage of the case.

The opinion (12 page / 51KB PDF) Other papers in the case (at Davis's site)

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

Secure remote control for conventional and virtual desktops

More from The Register

next story
'Stop dissing Google or quit': OK, I quit, says Code Club co-founder
And now a message from our sponsors: 'STFU or else'
Top beak: UK privacy law may be reconsidered because of social media
Rise of Twitter etc creates 'enormous challenges'
Uber, Lyft and cutting corners: The true face of the Sharing Economy
Casual labour and tired ideas = not really web-tastic
Ex US cybersecurity czar guilty in child sex abuse website case
Health and Human Services IT security chief headed online to share vile images
Don't even THINK about copyright violation, says Indian state
Pre-emptive arrest for pirates in Karnataka
The police are WRONG: Watching YouTube videos is NOT illegal
And our man Corfield is pretty bloody cross about it
Oz biz regulator discovers shared servers in EPIC FACEPALM
'Not aware' that one IP can hold more than one Website
prev story

Whitepapers

Gartner critical capabilities for enterprise endpoint backup
Learn why inSync received the highest overall rating from Druva and is the top choice for the mobile workforce.
Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Rethinking backup and recovery in the modern data center
Combining intelligence, operational analytics, and automation to enable efficient, data-driven IT organizations using the HP ABR approach.
Consolidation: The Foundation for IT Business Transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.
Next gen security for virtualised datacentres
Legacy security solutions are inefficient due to the architectural differences between physical and virtual environments.