Saturday, December 23, 2006

Deeplinking in the Heart of Texas, Judge Says No

Bad case out of Texas regarding linking and copyright liability. The website linked to "audio webcasts" of supercross events hosted on SFX Motor Sport's website, was accordingly accused of copyright infringement, and has been preliminarily enjoined from providing such links until the case is settled or resolved at trial. It's a troublesome decision because it essentially holds that you need permission to link to another website beyond its front page; that is, no deeplinking. The case is Live Nation Motor Sports v. Davis (No. 3:06-CV-276-L, ND Texas, Dallas Division). No sign of it freely online yet.

What happened was that SFX provided a link on its main page to its LIVE! page, which lists Supercross races for which there is an audio broadcast. Clicking on a race link goes to the page for that race, on which there is a link to the audio broadcast. Clicking on the link to the broadcast opens up Windows Media Player and the audio file is streamed. Confused? Click here to listen to the December 9th race from Vancouver. According to Texas, I just infringed SFX's copyright in that broadcast!

What is absolutely outrageous about this decision is that, as Internet Lawyer agrees, no actual copying occurred. Generally speaking, if there is no copying, there can't be any copyright infringement. It's even in the word copyright: the right to make copies. In addition to the right to make copies, as section 106 of the copyright act says, "in the case of sound recordings, [it is also the copyright owner's exclusive right] to perform the copyrighted work publicly by means of a digital audio transmission."

Essential to understanding the technology at issue, which Judge Sam A. Lindsey (it appears he's not too bright) obviously does not get, is the essential characteristic of streaming media. One definition of streaming media is "media that is continuously received by, and normally displayed to, the end-user whilst it is being delivered by the provider." Even if one deeplinks to an audio stream, the file is being sent from the original source exactly as if one had gone to the original page and clicked on the original link itself. Technically speaking, the transmission occurs in exactly the same way no matter from where the stream is accessed. So, it should be said that only the copyright owner is performing the work "by means of a digital audio transmission" because the stream is a single transmission from the source to the user. One can record the stream, and then rebroadcast it oneself, but providing a link to the original stream results in an unadulterated performance of the copyright owner's stream. A good analogy might be a fan posting his own fliers for his favorite band's upcoming concert. Yeah, you found out about it from an "unauthorized" source, but you still have to go to the same venue and watch the band play like everyone else who knew the concert was happening from an "authorized" source.

But why bother about the technology. In the background section of the decision, here is how Judge Lindsey described the arguments:
SFX asserts that Davis "streams" 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... Davis admits to providing an audio webcast "link" to the racing events on his website, and asserts an affirmative defense.
Nope. Davis (the operator of SCL) can best be described as providing access to the stream. Again, no matter where one clicks on the link to the stream, the stream itself is sent from SFX (or wherever the source file is located) to the user's computer and is performed through Windows Media Player. Based on this setup, it's not surprising that Judge Lindsey found "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."

This conclusion appears to have been heavily influenced by the case NFL v. PrimeTime 24 Joint Venture (summary here, decision here [pdf]), which is really off the mark. In NFL, a satellite carrier was sued for rebroadcasting NFL games in Canada. Is deeplinking to a media file the same as a retransmission? It shouldn't be. First, there are a whole set of rules from Congress and the FCC regulations (notably SHVA at the time because it was satellite, now SHVIA) that deal with retransmission rights. The Internet is largely beyond the control of the FCC and as such, reliance on a case that is founded on its regulations seems greatly misplaced. Second, and on a much more basic level, a retransmission is exactly what it says: it involves the capturing of broadcast signals and the resending of them through another network. In the NFL case, over-the-air broadcasts were captured by PrimeTime, who sent the signal to its satellites, from where it was sent to its subscribers in Canada. This is decidedly not the case with deeplinking to a media file, since the content is being delivered in exactly the same manner as it would be otherwise. There is no new technical path for the content to pass across.

I would point out here that the streaming at issue here appears to be a live broadcast of a given supercross race. That still qualifies as a sound recording, but is different than streaming music (which is what is often associated with streaming). Streaming music has been problematic because of royalty issues, for instance radio stations have to pay royalties to the various rights societies in order to stream their broadcasts, otherwise it's infringement. Again, however, this illustrates the issue of the source of the stream. A radio station streaming a popular song is like the satellite broadcaster in NFL, streaming another's work over its own connection. This is not the same as providing a way to access the original stream.

But not only does Judge Lindsey appear to misunderstand the technology and wrongly rely on NFL, he quoted from NFL in what seems to be a dangerous fashion in coming to his conclusion. The quote he chose from NFL was:
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.
If we were to accept Judge Lindsey's reasoning and conclusions at face value, then under his thinking, all copyright owners can dictate the manner in which their content is accessed, presumably including how and where that content is linked to online because clicking on a link is the last step in the process from creator to audience. That's a fine rule for traditional media, like when a company takes a broadcast signal and, without permission, sends that signal across its satellite network, but is a terrible rule to impose on the Internet. Such a rule applied online would be like requiring the permission of brickmakers before placing a brick to build a house, and would require permission for each brick. Links are as essential to the web as bricks are to buildings and to require such a rule seems incredulous.

Even if this rule became the law of the land, it would think that it would cause few problems for Google. Blake v. Google also dealt with linking, a case which SCL used to support its position, but the situations differ. In regards to Google linking to sites, or linking to cached versions of sites, it is important to note that a site can employ the robots.txt file to prevent Google from indexing, and thus linking to, a particular site. This is the functional equivalent of giving Google permission to link to one's site. This is very important for Google, because a site cannot complain about Google linking to its pages precisely because they have the option of whether or not to allow Google to link to them. Websites have no such option when it comes to humans seeking to link to their content, which makes the SCL case different.

Which brings up the point about whether a copyright violation has even occurred. There is a growing body of law dealing with the legal liability of linking, but they are mostly predicated on some underlying infringement. In Blake, Google was serving up archived cache versions of Blake's works (ie. copies). In Kelly v. ArribaSoft, the issue was inline linking (again, involves copies). And when it comes to linking, as was pointed out on Internet cases, California decided to adopt a "server test" when it comes to inline-linking in Perfect10 v. Google, meaning that "the website on which content is stored and by which it is served directly to a user, not the website that in-line links to it, is the website that 'displays' the content." While SCL is not inline linking (that would require that the audio be performed on the site itself, whereas what happens is that Windows Media Player opens to play the audio files), the idea of the server test would seem rather appropriate in resolving the dispute. At least it would be much closer to the facts than NFL.

What the problem presented by the case is, and should have been dealt with as, is a problem of SCL passing off SFX's audio stream as its own. This, however, is not copyright infringement, but would be best handled under some theory of unfair business practice under state law. Though SCL is currently down, and thus I cannot be sure how their links to SFX were presented, it is plausible that SCL did not include any indication that the streams were provided by SFX. This sounds like copyright infringement, but as I've tried to argue (and truly think the case to be) this is not technically copyright infringement since no exclusive rights appear to have been violated. Further, SFX doesn't charge for access to the audio, nor is there a login, so any claims that SCL is improperly bypassing anything (except perhaps ads and the rest of its content). Ticketmaster v. would seem to be relevant here, where scraped the ticket info from Ticketmaster and redisplayed it on its own site. This was not copyright infringement, and of course facts (time, location, ticket price, etc.) are not subject to copyright. The court said that ""deep linking by itself (i.e. without confusion of source) does not necessarily involve unfair competition." Ticketmaster certainly would also be a better place to start than NFL, but what do I know, I'm not a judge.

More: There's really a lot to this case. Bob Davis, the individual the runs, argued the lawsuit himself pro se, which may or may not have something to do with why the case came out this way, especially since he's up against a Baker Botts lawyer who's listed in The Best Lawyers in America 2007. Also too, Judge Lindsey's review from The Robing Room is less than flattering. The comments are particularly amusing. It also worth noting that much of this case revolves around a TM dispute too. SCL registered the domain in 2003, but didn't try to register Supercrosslive with the USPTO until recently. At nearly the same time, SFX tried to register Supercross LIVE with the USPTO and its first use in commerce claim comes after that of SCL. This has yet to be resolved, but the simmering issue of what appears to be a TM grab by SFX only indicates that this really is a highly charged dispute between the parties. All of these issues are contained in the motions provided on in the left column. As it is, there were plenty of less than ideal conditions that led to the decision, and I only hope that Davis has it in him to appeal and keep fighting.
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