U.S. District Judge Sam Lindsay in the northern district of Texas granted a preliminary injunction against Robert Davis, who operated Supercrosslive.com 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….
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….
[I]n [past] lawsuits, [courts have ruled that use of a] 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.)
The key here is that this was a sort of deep-linking that amounted to framing. In other words:
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.)
An odd case, and a situation that seems as if it was technologically avoidable. Even after getting this injunction, there are others who may be using these “naked” (ad-free) links who may be beyond the court’s reach. Hard cases usually make bad law (as they say in law school), but this seems like a sound outcome — probably. (I’m open to being swayed.) Sometimes hard cases just make software and website designers look bad — and the fee-for-representation system look pretty good. Oh, and the defendant represented himself — that’s almost never good.
Hat tip to Glenn Coleman (my brother the software engineer)!
UPDATE: Evan’s on top of it, as usual. And here’s an interesting angle. And here’s withering criticism from Bill Patry, who I now see is senior copyright counsel at Google, which can use all the help it can get and is now getting it. As usual, too, I’m now swayed: The opinion is wrong, wrong, wrong.