December 21, 2006 5:26 PM PST

Judge: Can't link to Webcast if copyright owner objects

A federal judge in Texas has ruled that it is unlawful to provide a hyperlink to a Webcast if the copyright owner objects to it.

U.S. District Judge Sam Lindsay in the northern district of Texas granted a preliminary injunction against Robert Davis, who operated and had been providing direct links to the live audiocasts of motorcycle racing events.

Lindsay ruled last week that "the link Davis provides on his Web site is not a 'fair use' of copyright material" and ordered him to cease linking directly to streaming audio files.

The audio Webcasts are copyrighted by SFX Motor Sports, a Texas company that is one of the largest producers of "Supercross" motorcycle racing events. SFX sued Davis in February, noting that fans who go to its own Web site will see the names and logos of sponsors including wireless company Amp'd Mobile. (Anyone who clicked on the link from Davis' site, however, would not see the logos of companies that paid to be sponsors.)

While Lindsay's decision appears to be the first to deal with direct or "deep" links to Webcasts, this is not the first time courts have wrestled with the legality of copyright law and direct links.

In 2001, a U.S. federal appeals court ruled that a news organization could be prohibited from linking to software--illegal under the Digital Millennium Copyright Act--that can decrypt DVDs. "The injunction's linking prohibition validly regulates (2600 Magazine's) opportunity instantly to enable anyone anywhere to gain unauthorized access to copyrighted movies on DVDs," the appeals court said.

A Dutch court reached a similar conclusion in a suit dealing with someone who had allegedly infringed Scientology's copyright scriptures, as did an Australian court in a case dealing with pirated MP3 files.

But in those lawsuits, the file that was the target of the hyperlink actually violated copyright law. What's unusual in the SFX case is that a copyright holder is trying to prohibit a direct link to its own Web site. (There is no evidence that SFX tried technical countermeasures, such as referer logging and blocking anyone coming from Davis' site.)

A 2000 dispute between Ticketmaster and suggested that such direct links should be permitted. A California federal judge ruled that "hyperlinking does not itself involve a violation of the Copyright Act" because "no copying is involved."

Davis, who was representing himself without an attorney, defended his Web site in legal filings that were full of bluster and accused SFX of acting like Genghis Kahn. He did stress that he merely included a "hyperlink, which launches the visitor's media player" instead of copying the audio file and republishing it.

That wasn't enough to convince the judge. Lindsay ruled that: "SFX will likely suffer immediate and irreparable harm when the new racing season begins in mid-December 2006 if Davis is not enjoined from posting links to the live racing Webcasts. The court agrees that if Davis is not enjoined from providing unauthorized Webcast links on his Web site, SFX will lose its ability to sell sponsorships or advertisement on the basis that it is the exclusive source of the Webcasts, and such loss will cause irreparable harm."

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It's just common sense.
A "hyperlink" to another Web site is promotional for that Web site and is beneficial to any advertisers on that page. Linking to a file on that page is not necessarily beneficial as any advertiser would have the right to expect, having paid their money for that benefit.
Link to my page? GREAT! Steal my files? Go to jail (or else pay me.)
Posted by Junkman453 (1 comment )
Reply Link Flag
That's Stupid
Telling someone, "It's over there," does not take a single thing from you.

Banning links on the Internet would kill the Internet as we know it. The provider can do something to "hide" such links if they wish. I have seen (though I dislike them) several such solutions.

Are they going to sue customers who save the link in their favorites? After all, those customers won't re-view the ads on the web page if they watch the event again.

Another ignorant judge.

Posted by andrews777 (1 comment )
Link Flag
A little knowledge is dangerous
It frightens me when judges that don't know anything about the
internet makes such sweeping rulings.

It is easy enough to prevent a deep link. Many companies
already do it (the porn industry probably depends upon it).

The ruling of this judge will likely have long term, chilling
consequences that were never considered, especially given that
it is so easy to circumvent the issue. This issue should never
have even come up in the courts.
Posted by m.meister (278 comments )
Reply Link Flag
Which is why the saying...
..."a person who represents himself in court has a fool for a client"
is really applicable in this case.

This is important enough that the defendant shouldn't have been
representing himself. I would think this is a case that the EFF or
possibly even ACLU would have been interested in helping with.

LIke another commenter said, saying, "It's over there." shouldn't be
a violation of copyright.
Posted by Jay Jennings (80 comments )
Link Flag
I'm glad that a judge finally decided to rule in favor of copyright protection. My competitors are always using my trademark to sell their junk products on the web and its not right. When I Google Coke I want to see Coke ads not Pepsi. Its clear to see that Coke could lose sales to Pepsi based upon random search results. I think Google should fix this too. I hate it when I type in one brand and the sponsored links are flooded with knockoffs. Intentionality using another companies name to sell your products is crime, why is this even a debate? The website was clearly increasing the value of their website and visitors by essentially pirating cable TV. If my bar is hosting a pay per view event I cant steal it and beam it to my bar for free.
Posted by enzymus (1 comment )
Link Flag
Look closely...
I haven?t read the whole case but it seems that it is the way he was linking as opposed the mere fact that he was linking. The click launched the users? media player, and played the vid, it did not link to the web page where the video lived. So I guess the copyright owner doesn?t get the PV, so the plaintiff is losing out on ad inventory. That?s just my take.. seems like a reasonable complaint to me.
Posted by cabruiser (2 comments )
Reply Link Flag
Misunderstanding there I think...
"The click launched the users? media player, and played the vid,
it did not link to the web page where the video lived."

In the majority of cases, a video doesn't 'live' in a web page. If
you provide a link to a media file (eg MP3, MPEG, WMV, RM etc)
then, by default, the vast majority of user set-ups will launch
that file in the specified player (WMP, iTunes, QuickTime, Real
Player etc).

These are files on a public server and, as such, can be directly
linked to under the "rules" of hyperlinking.

As other people have stated, including a password system to
prevent unauthorised usage isn't rocket science; indeed it's what
any savvy web developer would do.

Posted by ross brown--2008 (57 comments )
Link Flag
The judge is right. While locking one's door is nice, leaving it unlocked does not give you the right to walk in and help yourself. One presumes that Davis is doing this for his own gain - in whatever form. Thus unjustly enriching himself from someone else's labors. If he wanted to profit from such content let him create it. The same goes for framed pages with other's content. Go create your own , unless your are too stupid or lazy or just a plain thief. Which it appears applies to Davis.
Posted by gggg sssss (2285 comments )
Reply Link Flag
This is not about "locking ones door"
No, the judge is horribly wrong. It is truely a shame that the defendant chose to represent himself and that the EFF etc did not step it.

This is the publisher saying "I can not be bothered to lock my door" and demanding that no one supply the address, lest he be robbed by someone who can read a map.

All that the publisher had to do is add a tiny bit of code in the .htaccess file and they could have blocked everything from this referer. This is done all the time. Its called hotlinking protection. Cpanel and many other interfaces offer it as a standard, easy, code free, option. Had the publisher implimented it they would have suffered absolutely no harm, much less irreparable harm.

Imagine that this case is now used against Google, for example. Google might directly link to a .pdf file on my server. They are a commercial venture and make advertising revenue from their link to me. I loose advertising revenue from the page I link to my own pdf on. Should I sue Google? That is what this case supposes, that I would be entitled to sue at least for an injunction. Take it one step further, I was financially damaged, should I sue also for lost revenue? Suddenly our entire model of search engines crumbles, perhaps with the rest of the internet as well. All because a judge hasn't the slightest clue of how the internet works.

A link, even a "deep link" is nothing more than an address. It is a FACT, not a creative work. FACTS, like addresses are not protected by Copyright.

Hopefully the EFF will step in and appeal this.
Posted by thebes42 (45 comments )
Link Flag
Degrading Ethics
I am truly appalled at what I have read in the discussions here. It seems if property doesn't have a corporeal form, then the rules should be different?

It's obvious the property owner is compensated for the use of it's property via ad revenue and Davis' direct link results in consumption of their product (and bandwidth) while bypassing the revenue mechanisms the owner relies on.

To make matters worse, reviewing an archived version of Davis' site shows that his site derived revenue via ads on his site resulting in him profiting from his actions. So, he took revenue from the owner and then generated his own revenue from the owner's property. Kinda shoots down the whole noble, "I'm helping promote the industry." approach.

All of this could have probably been avoided if he had linked to the page hosting the WMA file instead of directly to the file.

I agree the owner should have better mechanisms in place to protect it's property, but not because of some made up rules about how property is handled on the web, but because of folks like some of those in this forum who believe if you can access it, then it must be free and you can do whatever you want with it.

It is actions and thoughts like these that give the lawyers ammunition to go after our real fair use rights for most copyrighted material.
Posted by adlyb1 (123 comments )
Reply Link Flag
A website is not a house
Interesting discussion.

I am not a web designer but I believe security is possible. One of things that first blew me away about the internet (years ago) was that you can come to a link by any number of ways. It is nothing like a book or a library. Home page is rarely the first page anyone visits. I came to this story via rss feed on netvibes to boingboing to cnet. Aggregators are everything to the web and to the this decision.

If you want to keep ability to access webpages/objects from a multitude of ways I think the ownership for security and access to any web object >has< to fall on copyright owner. Otherwise, (I agree with the previous post) that search engines and aggregators are dead.

With this decision you are left with having to prove that the web page/object "should not be" unaccessable and the user "should have known". A house is four walls and by concensus, private. A website, as a communication tool, is by it's nature intended to have some sort of audience and therefore you must secure what is private or intended to viewed in a specific way.
Posted by michanne5 (1 comment )
Reply Link Flag
Unlocked doors - revisited
When you place something on the Internet and it's accessible without a password, you are saying to the world "This is available for you to see." If you only want them to see it under certain circumstances then it is up to you to enforce those circumstances.

A previous comment mentioned that just because you leave your door unlocked doesn't mean that others have a right to take your property. That is not a valid analogy.

A more appropriate one would be to equate a website with a public business. Imagine you have a cool widget that others will want to see. Instead of charging admission you choose to sell ads on your walls. So you have a pathway that you want your customers to walk down, viewing these ads, before reaching said widget.

Now, say I know of a shortcut in your business that allows others to bypass your hallway of ads. Is it wrong for me to tell others that shortcut?

If I were the business owner, I would make sure that there were no shortcuts, that my clients could only see the widget by following a path of my choosing. I wouldn't be suing someone for divulging shortcuts in my own place of business.
Posted by Ted_In_AK (28 comments )
Reply Link Flag
Exactly Right
"When you place something on the Internet and it's accessible without a password, you are saying to the world 'This is available for you to see.' If you only want them to see it under certain circumstances then it is up to you to enforce those circumstances."

This is exactly right. Unfortunately, the legal system is wrangling with this common-sense solution. Personally, I see fault with both parties: The linker who, by his apparent attitude in his web postings and choosing to represent himself, displays a certain arrogance and unwillingness to accept compromise (as someone else has mentioned, a good lawyer would have advised him to do); and the agrieved party, for not taking even the simplest, technical measures to prevent what they considered unauthorized use. This is just another example of copyright law (which it really isn't at all!) going astray to protect a business model.

--mark d.
<a class="jive-link-external" href="" target="_newWindow"></a>
Posted by markdoiron (1138 comments )
Link Flag
Better call Google
Umm...Isn't this what Google is all about? This is a ridiculous waste of resource. The site owner should make the material availble only to current site users, enforced technically. The only reason they should bother with the law is for decision reasons(money) not enforcment.
Posted by mavilla (1 comment )
Reply Link Flag
Dutch Ruling Reversed
The case referred to in 1999 in Dutch courts (involving $cientology critic Karin Spaink) was reversed in September of this year. Judges do sometimes have some sense and social conscience, and $cientology can't buy or intimidate all of them.

See the entry on Karin Spaink in the Wikipedia.

Posted by Arelx (1 comment )
Reply Link Flag

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