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.