Friday, December 22, 2006

Gentlemen Stop Your Linking

Cases involving pro se defendants are usually quite dangerous, not only to the defendant, but also to the rest of us: plaintiffs who are represented by decent enough law firms, if before a district judge without copyright experience can, and often do, get away with outrageous things. This may have been the case in Live Nation Motor Sports, Inc. v. Davis, 2006 WL 361983 (N.D. Tex. Dec. 12, 2006). I say "may" because the opinion is somewhat ambiguous on what is for me the critical factual issue in the case: was defendant streaming a radio broadcast or merely providing a link to the authorized stream of that broadcast?

Plaintiff is SFX, a division of Clear Channel. At issue were live broadcasts of motorcycle races known as Supercross. Defendant has a website at www.supercross.com. The opinion states plaintiff alleged defendant "performs and displays audio webcasts of the racing events .. . by stream[ing] the live webcast of the races on his website in 'real time,' which causes SFX irreparable harm by limiting its right to sell sponsorships or advertisement on its own website as the 'exclusive source' of the webcasts."

That made me think defendant was somehow capturing a live feed of the event and streaming it over his site, a not particularly difficult issue. But, in discussing defendant's purported "affirmative defenses," the court indicates defendant did no more than provide a link to plaintiff's own site, which permitted consumers to listen to plaintiff's stream of the broadcast while still remaining on defendant's site. This seems consistent with plaintiff's complaint that its loss was from advertising revenue: consumers would go to defendant's site and not to plaintiff's and thus reduce the audience size on plaintiff's site. If true, there was no violation of the Copyright Act since the stream was plaintiff's. This story on CNET supports the view that defendant did merely provide a link to plaintiff's site, and thus this is a deeply disturbing opinion.

Here is the entirety of the court's discussion. If I am right on the facts as I seem to be, its analogy to the NFL case is completely wrong since that case involved an unauthorized capture and performance through defendant's separate satellite service (and to Canada much less):


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. 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. See 17 U.S.C. § 102; see also Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841 at 847 (2d Cir.1997) ( citing H.R.Rep. No. 94-1476 at 52 (1976), reprinted in 1976 U.S.C.C.A.N. 5659 at 5665) (noting Congress's reasons for amending the Copyright Act to include protections for live brodcasts). SFX, as the producer of the racing shows, qualifies as the author or "owner" of the copyrightable material. ... SFX also states, and Davis does not appear to deny, that Davis's website, www.supercrosslive.com, provided live audio webcasts of those shows. Davis's response to SFX's allegations are unclear, because he denies streaming, copying or re-broadcasting SFX's shows; however, Davis asserts that he has an "affirmative defense" to SFX's complaint because he provides "the same audio webcast link freely distributed by ClearChannel executives and thousands of individuals upon thousands of websites worldwide."... . Additionally, Davis asserts "fair use" as an affirmative defense.
...
Litigation over copyright protections for live internet webcasts have not made their way into controlling Fifth Circuit opinions (nor any other circuit court opinions that this court could find). Opinions addressing copyright protection for live television broadcasts, however, provide appropriate, analagous guidance in this case. In National Football League v. PrimeTime 24 Joint Venture, the Second Circuit upheld a permanent injunction against Defendant PrimeTime, which provided unauthorized satellite transmissions of the NFL's copyrighted weekly live broadcasts of football games to viewers in Canada. 211 F.3d 10 (2d Cir.2000). PrimeTime had argued that "capturing or uplinking copyrighted material and transmitting it to a satellite does not constitute a public display or performance of that material." Id. at 12. The court rejected that argument by reviewing similar copyright infringement actions, as well as legislative history, and stated:
We believe the most logical interpretation of the Copyright Act is to hold that a public performance or display includes each step in the process by which a protected work wends its way to its audience. Under that analysis, it is clear that PrimeTime's uplink transmission of signals captured in the United States is a step in the process by which NFL's protected work wends its way to a public audience. In short, PrimeTime publicly displayed or performed material in which the NFL owns the copyright. Because PrimeTime did not have authorization to make such public performance, PrimeTime infringed the NFL's copyright.
Id. (internal citations ommitted). The court believes Davis has tried to make a similar argument as PrimeTime by stating that he has an "affirmative defense" because he provides the "same audio webcast link freely distributed by ClearChannel." Similarly, 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.
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. The Copyright Acts states that reproductions of a copyrighted work is protected as a "fair use" of the material if used for purposes of "criticism, comment, news reporting, teaching ··· scholarship or research." 17 U.S.C. § 107.
Davis has not provided any evidence that his "use" of SFX's audio webcasts falls within any of these categories. He does use the word "commentary" in his "Seventh Affirmative Defense," where he asserts that "[t]his is a malicious attempt by the Plaintiff to stifle competition and commentary from non-Plaintiff Internet websites and to clear the commercial landscape of potential competitors of Plaintiffs." ... In light of Davis's statements regarding commercial competition, the court does not believe Davis's "use" of SFX's audio webcasts qualifies as fair use for the purpose of criticism, comment or news reporting. Davis has given no indication that he excerpts portions of the webcasts on his website for these purposes. Rather, he admits providing a link to the webcast that "is the same audio webcast" provided by SFX.... . Accordingly, the court finds that SFX is likely to succeed on the merits of its copyright infringement claim against Davis, because Davis has copied SFX's copyrighted webcasts without authorization, and not for the purposes protected by the "fair use" provision of the Copyright Act.

36 comments:

Crosbie Fitch said...

Could this be similar to someone selling a 'movie preview' overlay:

"Stick this Internet connected device between your TV aerial and your TV, and any time a commercial break would otherwise appear, we'll show you a more entertaining movie preview."

A 3rd party is providing a service that augments another's broadcast.

Does a broadcaster have the privilege of requiring that their broadcast may either be 1) contiguous, uninterrrupted, unadulterated and framed only by an 'information neutral' background, OR
2) Not watched at all.

Perhaps this is why radio broadcasts are to be treated differently from web 'streaming/broadcasts'?

If there is no copy, nor single signal, what but intention can define how the publisher desires their work to be perceived?

People recreate traditional metaphors of paper and TV channels on the Internet, but they are only metaphors - incorporeal simulacra - they do not necessarily behave the same way.

It's like a brewer demanding that their product may only be served in special 250cl glasses, and that anyone caught pouring two servings into a 50cl glass must have their beer confiscated and be ejected from the premises.

[This is the policy at my local.]

Apparently, 60 years ago, Germany required that TVs were not to be distributed to members of the public for use in their own homes (as in the UK), but that special public TV viewing rooms were to be constructed in order that the TV programmes were 'enjoyed' as their broadcasters intended.

You have to start wondering when the 'rights' of the publisher become so far reaching that they trump any notion of individual liberty. It'll eventually become a binary choice of 'open your eyes and take it as it comes, or close your eyes'.

Do publishers have a right for their individually tailored advertising propaganda to reach their 'consumers' without interference?

It's all coming back to the idea of control of channels, not really of the art delivered along it.

People with messages they want to send to people want those messages free of any interference.

Every commercial publisher appears therefore to have the characteristics of an authoritarian demagogue.

I can just tell that the right to integrity will be warped from a matter of attribution accuracy into a right for a publisher's broadcast to be prohibited from reception and presentation except in authorised manners or contexts.

Evan said...

I agree with Bill that the essential factual issue in the case is whether the defendant merely linked to the broadcast or somehow streamed it through his website. In either factual situation, the holding is problematic. Clearly we don't want to live in a world where you can be liable for infringement just for linking to someone else's content.

It if was a stream of the webcast that was simply redirected through the defendant's site, then I think it's more like in-line linking than it is uplinking a satellite signal like the facts of NFL v. PrimeTime24 case. I've compared this case to the holding in Perfect 10 v. Google here.

This is a case that could have implications in podcasting. One could extend the holding to mean that infringement occurs when simply by linking to an mp3 file on another's server, thereby creating an enclosure in your feed, you may have undertaken an unauthorized distribution, performance or display of the enclosed work, notwithstanding the fact that it is still downloaded from the original producer's server.

William Patry said...

Thanks providing the link to your blog Evan. I don't see how this isn't like framing. The plaintiff wasn't complaining that the stream itself was unauthorized, clearly it wasn't it was its own stream. Instead, it was complaining people weren't listening to the stream while tethered to its site. A deeply disturbing case.

Anonymous said...

In the NFL case, the defendant was actually authorized to capture and upload the broadcasts and transmit them to a particular audience in the United States. What they weren't authorized to do was transmit to audiences in Canada. Defendant's argument was that a) uploading wasn't public performance, and b) any public performance was taking place in Canada, hence U.S. copyright law didn't apply. That led to the Fifth Circuit's statement that every step in the path to the audience is a public performance. And so here we are.

As I demonstrated in my post on this subject, it is entirely possible to link directly to the audio stream and have it launch in Windows Media Player. If that's what Davis was doing on his site, I'm with you in the "deeply disturbing" camp.

Anonymous said...

Oh, and your post title totally wins.

William Patry said...

Thanks, Matthew. I wrote an amicus brief to the Second Circuit in the NFL case, and my wife's judge had it on remand for damages (She didn't work for him at that point). I agree with almost all you say, but in one sense the satellite transmission was authorized in both countries. In the U.S. the transmission was authrized under 119 to U.S. subscriber. In Canada the retransmission was authorized to Canadian subscribers under Candian law. The issue was whether you could say under U.S. law the U.S. uplink for viewing in Canada was authorized. To reach it wasn't, the court had to hold that the uplink not only wasn't authorized, but that it was itself a public performance regardless that the eyeballs in question were in Canada.

John Noble said...

I think this is squarely covered by 47 USC 512(a):

Sec. 512. Limitations on liability relating to material online

(a) TRANSITORY DIGITAL NETWORK COMMUNICATIONS- A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if--
(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification of its content.

* * *
(k) DEFINITIONS-
(1) SERVICE PROVIDER- (A) As used in subsection (a), the term `service provider' means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received.

Anonymous said...

John, I belive you mean 17 USC 512(a). There are formalities involved with qualification as a service provider, it is not automatic. 512(c)(2) sets forth the requirements.

Designated agent. The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
      (A) the name, address, phone number, and electronic mail address of the agent.
      (B) other contact information which the Register of Copyrights may deem appropriate.
   The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, in both electronic and hard copy formats, and may require payment of a fee by service providers to cover the costs of maintaining the directory.


The current filing fee is $80.00. The Copyright Office has more information at http://www.copyright.gov/onlinesp/. An index of registered service providers is available at http://www.copyright.gov/onlinesp/list/index.html.

I’m not convinced that Supercrosslive would even qualify under any of the safe harbors (ISP, host, or search engine). Regardless, qualifying as a service provider in no way limits any other defenses to infringement. This is a trivial aside compared to the larger issues this case raises.

Anonymous said...

In regards to your pro se comment, then I'm sure that the gentleman who was sued and lost would welcome your, and other legal professionals, assistance during his appeal.

If the issue is important enough, and may have impact on Google, which is your concern, I'm sure that he can get the legal assistance he needs without having to bankrupt himself to pay for it.

Shelley Powers
http://just.shelleypowers.com

billb said...

Ms. Powers, above, has beat me to my exact point. It sounds like it's time for you to start to offer your services, pro bono, to this guy on appeal.

Colette Vogele said...

This is an excellent discussion of a very important issue. I've posted a few thoughts on my blog. I would be willing to consider assisting on an appeal after receiving additional information, and especially if we can form a team of bright attorneys (and perhaps a legal defense fund to cover costs and a reduced fee).

Anonymous said...

It makes all the difference in the world when you look at the correct site.

You're linking supercross.com. The site where the trademark was infringed was supercrosslive.com.

If you search through the Wayback Machine on this domain, you will see that this site does copy SFX's trademark, results, webcasts, and markets them as its own. It also, in previous months where the Flash popup doesn't corrupt the results, seek donations for "its" webcasts.

Don't take my word for it: go out to the wayback machine, look for any of the December site pages, and a page like this pops up.

Shelley Powers
http://just.shelleypowers.com

John Noble said...

I did mean 17 USC 512(a) (thankyou Aaron), but I don't think that the 512(a) safe harbor is conditioned by 512(c)(2), which applies only to the "limitations on liability established in this subsection," i.e. 512(c), for material stored "at the direction of a user ... on a system or network controlled or operated by or for the service provider."

The safe harbor of 512(a) is unconditional (except for equitable relief pursuant to 512(j)). There is a question whether Supercrosslive.com is a "service provider" for purposes of 512(a), as defined by 512(k)(1)(A). The issue is whether the link to the Supercross feed, when it is clicked on by the user, establishes a connection "between or among points specified by a user, of material of the user's choosing." I think you can argue it either way: Supercrosslive.com isn't an ISP providing a common carrier-like service, but the user is still "choosing" to establish the connection between SFX and the user's own computer.

But even if Supercrosslive.com is outside the definition of "service provider" under 512(a), the legality of the link to the live SFX feed is a given in light of 512(b). Sec. 512(b)(1) would allow Supercrosslive.com to cache the initial SFX transmission -- described in 512(b)(1)(B) as "material transmitted from [SFX] through [supercrosslive.com] to [a user] at the direction of that [user]" -- for "subsequent users" under the conditions set forth in 512(b)(2).

Ms. Powers points to evidence of trademark infringement by supercrosslive.com, but that's not the issue. Bill's initial post suggested the strong possibility of a good trademark infringement claim based on the likelihood of confusion as to the true origin of the live feed. But that doesn't establish copyright infringement unless Ms. Powers is correct in her allegation that supercrosslive.com "does copy SFX's ... webcasts" -- outside of the safe harbor provided by sec. 512(b) for caching a content provider's material.

John Noble

Anonymous said...

It strikes me that this is the point this whole thing goes wrong:

"SFX also states, and Davis does not appear to deny, that Davis's website, www.supercrosslive.com, provided live audio webcasts of those shows."

From everything I've read Supercrosslive.com did not provide "live audio webcasts" but rather "direct links to live audio webcasts".

Not being completely familiar with this case though did they link directly to the feed or to the page which allowed users to load the feed from SFX. (ie. when I clicked the link did it just open in a media player or did go to a page on SFX that allowed the users to access the feed).

If it's the former I don't know that the plaintiff is all that wrong in what they are looking for. But the judgment is still not a good thing.

Anonymous said...

John, thanks for the clarification regarding the formailites only applying to 512(c).

Aaron said...

As I understand it, the issue here is that the defendant is linking to the audio stream, not to the page that the stream is embedded on. There's a huge difference.

Regardless, this should have never gone to court. The plaintiff need only configure his server to redirect traffic coming from this referring domain to an alt url.

William Patry said...

I think the issue is where is the stream that defendant linked to coming from? I have assumed that it is coming directly from plaintiff; it is, I believe, not the case that defendant captured the stream and is, essentially simultaneously retransmitting it. The former is not to me infringement.

There are, as others pointed out, serious trademark issues and it can't be said that defendant has particularly helped himself much it all during the course of the case: that is what was behind the opening sentence in the blog. It is not the case as Shelley Powers stated in her blog that I am being "disingenuous" in referring to defendant's pro se status (and her speculation about my "real" concern is wrong and obnoxious). To the contrary, I was noting the reverse: that where plaintiff is represented by a decent enough law firm and is before a judge not familiar with copyright, bad things happen to the pro se defendant, and as a result to the rest of us through a bad opinion. We find out about these things after the fact: defendant here did not ask for anyone's help as far as I know before hand or yet. Its a free country and you are certainly free to screw up your own case, but don't blame others or complain that somehow we have let defendant down or society at large.

There has also been confusion about different sites and therefore copyright and trademark issues. my posting is only about the copyright issues, and here it says: "SFX contends that Davis performs and displays audio webcasts of the racing events through his website, www.supercross.com, in violation of SFX's copyright." The SupercrossLIVE discussion is in connection with the trardemark issues.

Anonymous said...

I'm sorry you thought my comments in regards to your pro se statement to be obnoxious. There is truth to it, though: most people cannot afford the lawyers to fight larger corporations on issues of this nature.

It's not that the person who defends themselves who is at fault, as much as it is a legal system that favors corporate interests above that of the individual; those with money over those without.

I understood what your concern was: that this ruling sets a precedent that can then be used in other cases, and have longer reach than just this one case.

But my particular interest is a concern about an even larger issue: that pro se is here, and it's up to the system, and those part of the system, to make it so that those who must go this route do so with as much knowledge as can be possibly given.

Just saying "Oh, this is what can happen when you mix a pro se defendant, a less than knowledgable judge when the plantiff has a smart lawyer" may be true, but it's also unavoidable in today's court systems.

But I'm sorry if you took offense at my condemnation of this system.

I'm not sure that EFF would have supported Mr. Davis because of his obvious copying of so much trademarked material. It was a bad situation made worse.

Shelley Powers

Shelley said...

Frankly, from the readings, I don't think that the plaintiff's lawyers really wanted to set such a precedent.

Perhaps this was a case where no one acted with any particular forethought to the consequences. Which I guess we could take to mean that in law, even the lawyers and judges can sometimes screw up.

Hard to say.

William Patry said...

Shelley, thanks for your clarification.

Zvi said...

Westlaw seems to have the original trial pleading at 2006 WL 745161, but I can't access it under my subscription. Perhaps it would clarify the issue, although I'll admit the Cnet article is pretty clear itself.

William Patry said...

OK, here are the relevant (i.e., for copyright purposes), parts of the complaint:

Plaintiff SFX Motor Sports, Inc. (SFX) alleges:

NATURE OF THE CASE

(1) This is an action for trademark infringement and false designation of origin arising under the Trademark Act of 1946, as amended, Title 15, United States Code, § 1125, common law trademark infringement, common law unfair competition and copyright infringement arising under the United States Copyright Act, Title 17, United States Code § 501 et seq. More specifically, this action involves Defendants' unauthorized use of trademarks owned by Plaintiff in connection with services competing with Plaintiff as well as other unfair competitive acts. Defendants have also re-broadcast certain audio broadcasts owned by Plaintiff, thereby infringing Plaintiffs copyright in and to such broadcasts, and copied original, copyrighted artwork owned by Plaintiff.



FACTUAL ALLEGATIONS



(14) Plaintiff produces a live audio broadcast for each event in its Supercross Championship Series and World Supercross GP which airs as a web cast exclusively on Plaintiffs Web site at www.supercross.cc.com. In addition, Plaintiff has created trackmaps for each of the dirt tracks laid out for its supercross events at each of the stadiums where the events are held. This artwork is copyrighted by Plaintiff. Plaintiff is in the process of registering its copyrights on the audio broadcasts and trackmaps on an expedited basis in the United States Copyright Office and will amend this Complaint to identify the registration certificates upon issuance.

(15) Without the knowledge, authorization or consent of SFX, Defendants have used the logos of both series as well as other trademarks, slogans and copyrighted materials owned by SFX. More specifically, Defendants' actions include:

(i) the unauthorized use of an exact duplicate of the Supercross Championship Series logo;

(ii) the unauthorized use of an exact duplicate of the World Supercross GP logo;

(iii) the unauthorized use of an exact duplicate of the “header” from SFX's Web site at “ supercross.cc.com;”

(iv) the unauthorized copying, reproducing and distributing of SFX's live, copyrighted audio broadcast of Supercross Championship Series and World Supercross GP events at Defendants' Web site www.supercrosslive.com;

(v) the unauthorized copying, reproduction and distribution of SFX's original copyrighted artwork for its Supercross Championship Series and World Supercross GP events track designs at Defendants' Web site www.supercrosslive.com; and

(vi) on information and belief, the unauthorized linking of Defendants' Internet locations with the Web sites of Plaintiff, its sponsors and sanctioning body.

Each of the aforesaid activities are or have been conducted at a Web site at www.supercrosslive.com, an Internet address owned, on information and belief, by Defendant Robert “Bob” Davis. Defendants have continued many of their infringing activities subsequent to receipt of written notice of their infringement from Plaintiff.

(16) On information and belief, Defendants derive revenue from the aforesaid unauthorized actions and a principal factor in such revenue creation is the appearance of SFX's intellectual property copied by Defendants without authorization, consent or knowledge of Plaintiff.


COUNT IV


COPYRIGHT INFRINGEMENT

(40) Plaintiff repeats and alleges the foregoing paragraphs 1-16 as though set forth in full at this point.

(41) Plaintiff is the sole and exclusive owner of all right, title and interest in and to the copyright in the audio broadcasts of Supercross Championship Series and World Supercross GP events (“Audio Broadcasts”), which are broadcast at Plaintiffs Web site, www.supercross.cc.com.

(42) Plaintiff is in the process of registering its copyright in said Audio Broadcasts on an expedited basis in the United States Copyright Office, and will amend this Complaint to identify the copyright registration numbers upon issuance.

(43) Plaintiff is the sole and exclusive owner of all right, title and interest in and to the copyright in the artwork for its Supercross Championship Series and World Supercross GP events track designs (“Track Design Artwork”), which are displayed at Plaintiffs Web site, www.supercross.cc.com.

(44) Plaintiff is in the process of registering its copyright in said Track Design Artwork on an expedited basis in the United States Copyright Office, and will amend this Complaint to identify the copyright registration numbers upon issuance.

(45) Without the knowledge, authorization or consent of Plaintiff, Defendants have willfully copied, reproduced and distributed, and continue to copy, reproduce and distribute Plaintiffs Audio Broadcasts and Track Design Artwork, and/or derivatives thereof, at Defendants' web site, www.supercrosslive.com even after receipt of written notice of their infringing activities.

(46) The foregoing acts of Defendants constitute copyright infringement in violation of Plaintiff's exclusive rights under the United States Copyright Act, 17 U.S.C. § 501.

(47) As a proximate result of Defendants' actions, Plaintiff has suffered and, unless enjoined from such acts, will continue to suffer great damage to its business, goodwill, reputation and profits.

Max said...

Is this really a precedent? I understood "deep links" already required license/permission regardless of whether the other side of the link was text, pictures, graphics, or streaming video. I thought that was the point of "linking policy" documents you still see on websites from time to time.

William Patry said...

Max, so how are the links that I provided on this posting itself any different?

John Noble said...

Properly framed (no pun intended), this case is about deep linking -- the defendant provided a link directly to the plaintiff's webcast of the races, rather than to the plaintiff's webpage that contains the link to the webcast, thereby bypassing all of the indications and marketing advantages of plaintiff's sponsorship of the races.

There is very little caselaw on the issue. In Ticketmaster v. Tickets.com, 2003 WL 21406289, the court dismissed copyright infringement claims insofar as they were premised on unauthorized copying of the internal url, or unauthorized display of the linked material. With respect to the latter, the court distinguished Kelly v Ariba, 280 F.3d 934, limiting the 9th Circuit's holding to the effect that "by importing plaintiff's images into its own web page, and by showing them in the context of its own site, defendant infringed upon plaintiff's exclusive public display right." The court in Ticketmaster found no infringement where the user was "taken directly to the originating TM site, containing all the elements of that particular TM event page."

It's not clear, but it sounds as though supercrosslive.com's activity more closely resembles tickets.com's non-infringing direct link to "all of the elements" (the webcast), rather than Ariba's re-framing of photos from Kelly's website. It's also not clear to me that the distinction provides a useful basis for analyzing the copyright infringement claim. But I think it is useful to evaluate the infringement claim as a violation of the distribution right, or contributing to a violation of the reproduction right, rather than a violation of the reproduction right by supercrosslive.com, because there is no indication that the defendant "copied" the plaintiff's webcast.

John Noble

Max said...

/* Max, so how are the links that I provided on this posting itself any different? */

My understanding is that officially you need permission to link to anything other than, say, the home page, under the concept that the website as a whole is copyrighted and linking to parts of it requires permission (you change the user experience at least as much as when you cut out dirty words to movies, and that requires permission).

But, and it's a big but, nobody files for copyright on their entire website. The most that would ever happen is you could get a cease and desist letter allowing you to work out what permission you have to link to that site while the owner tries to file for copyright on the entire site as it exists on a particular day.

So, effectively, copyright issues aren't really going to ever come up. Instead you run into contract issues, which are based on whether a linking policy exists and what it says, and what kinds of social expectations exist when there isn't such a policy (think cattle ranching fences, why they exist in the city and why they exist in the country).

My rule of thumb has been that if it's on the web, then there's at least implied permission to show it to other people, and to link to it. But I won't copy pictures over from a website unless there is a specific permission notice allowing it. And I won't link to anything less than a webpage without something more than my gut feeling that it'll be acceptable.

analoghole said...

My understanding is that officially you need permission to link to anything other than, say, the home page, under the concept that the website as a whole is copyrighted and linking to parts of it requires permission (you change the user experience at least as much as when you cut out dirty words to movies, and that requires permission).

Your understanding is wrong. Or perhaps a less flippant way of putting it would be, "There is scant legal support for your understanding, and were your understanding true it would be a bad thing." I'm not sure what led you to draw this conclusion, but I'm guessing it might be from the many overreaching claims of ownership made on websites (and in litigation). After a while, these overbroad claims (even if they fail in court) seem to reframe the issue, so that many people develop an "understanding" or a "rule of thumb" that deep-linking violates some aspect of copyright.

William Patry said...

I see no legal difference between linking on to a home page and linking to pages within the site. I understand commercially why there may be a difference, but then plaintiffs' real complaint in the Sony Betamax was not time-shifting of free-over-the-air broadcast programming,but rather fast forwarding through the commercials.

Anonymous said...

Just a quick note, but all of the legal filings and cross filings are available in downloadable zipped files at supercrosslive.com.

There's quite a few. Busy case.

Shelley

Max said...

/* I see no legal difference between linking on to a home page and linking to pages within the site.
*/

I personally believe linking to a page within a site is a lot like showing a particular page or paragraph within a book. And, because of discussions like this, I've been trying to find the case that found "deep linking" requires permission. I haven't been able to find that case yet, and I'm beginning to wonder if it exists.

I still won't link to anything that I don't consider "public" (eg., if it's not password protected), but that's more social norms than legal advice. Likewise, the conduct that's the basis of this legal case is frowned on as "stealing bandwidth," and I wouldn't do it either. But I will retract my statement regarding copyright infringement/breach of contract in light of disagreement by the experts.

Colette said...

Has anyone seen the newer opinion -- dated Jan 9, 2006 -- which makes it clear that this is a linking case and removes the ambiguity of the December 11 opinion? (available at 2007 U.S. Dist. LEXIS 2196) It reads starting at page *6:

A. SFX's Motion for Partial Summary Judgment

SFX, in its copyright infringement claim, asserts that Davis "streams" the live webcast of its races on his web-site in "real time," which infringes upon SFX's exclusive right to display and perform the broadcasts. Pl. Mot. for Partial Summ. J. at 3-4. Davis admits to providing an audio webcast "link" to the racing [*7] events on his website, and asserts an affirmative defense. Mot. to Quash at 1. The court determines that there is no genuine issue as to a material fact on the issue of copyright in-fringement and that SFX is entitled to judgment as a mat-ter of law on this claim.


The opinion goes on to have a very meager fair use analysis, and all of this (imho) appears to be the result of an unrepresented party not able to present the facts properly before this court. There will be a trial on damages and also on the trademark claims.

Thoughts? Ideas? I'd be interested in hearing from those who have provided the many useful comments on this string as it relates to the December 11 opinion.

Ray Gordon said...

As a pro se who has sued Google for copyright infringement, lost, and is appealing (ruling pending), I'll offer some comments (case is Parker v. Google, third circuit).

In my case, the trial judge offered this stellar wisdom:

1. I had not alleged infringement of a registered copyright, despite having specifically alleged that. Never mind that even if they win that argument, I could wheel back after going through the motions to have the issue decided again, and despite causing that scenario by arguing this way, they would then claim I was costing them money on a fight they prolonged by trying to dodge the merits. Is Google afraid of that? Why not deal with the merits now instead of trying to win on technicalities?

2. That I had not established that Google profited at all from the infringement, despite the ads they put on the pages that infringe.

3. That Google is a "transitory provider" under the DMCA due to their "cache" feature. The judge thought Google's "cache" was like a computer's internal "cache," much like AOL would "cache" an e-mail from one member to another in order to transmit the mail. By contrast, google makes wholesale copies of website and "caches" them, or uses the copies to generate search results from which they sell ads (to my competitors, from my material).

Lots of small web publishers have simply "gone offline" with their good content, and used their websites strictly as marketing devices, because they don't want Google effectively "caching" their paycheck. Marketing copy and SPAM is something people want copied, so no problem there.

Google blamed ME for putting my content out on the web for free, as if that were an invitation to them to copy it. Never mind that the internet is the most efficient and inexpensive publishing medium ever created, and that the alternative is to beg a major publisher to publish my work. Creating a "google tax" by requiring me to allow search infringement (they have to copy the work to have it turn up in search results) biases small, independent publishers who don't have a voice, and puts expense on my readers if I have to publish paper books. It also says that if I publish a book online, I have no protection, but if I publish it offline, I do, since the Author/Publisher guild lawsuits are saying "opt out" is not legitimate for offline works (though they seem to have no problem with online works since it destroys competition).

What is happening here is much bigger than the rulings: since we can't quash dissenting voices on the net the way we can in the major media by denying access to the individual, the courts seem to be trying to make it practically impossible for us to defend our rights out here.

Kind of like with Napster, the real issue isn't piracy, since they know they can't stop that, but rather the idea that maybe one day musicians will realize that they no longer need record companies.

Scary thought.

I fully support this ruling.

Anonymous said...

Aren't those who criticize this decision simply advocating for adoption of the Perfect 10 v. Google server test?

William Patry said...

Dear Anonymous, the answer is no. The case has nothing to do with the server test. Nor does the case have anything to do with caching or buffering, as others rant about. Instead, the case asks a simple question of statutory construction involving linking and the public performance right. The question is this: when a website provides a link to the copyright owner's own stream, has an authorized public performance occurred?

Anonymous said...

What would your take be if the defendant had been linking to and framing content from an infringing source,as opposed to from an authorized source - i.e., the copyright owner's web site?

William Patry said...

Dear Anon:

Where there is linking to authorized content, there can be no prima facie of infringement, so you don't worry about defenses. Where the linking is to infringing content, then one must examine whether there are any relevant defenses, such as those in Section 512.