Legal Fixation

Hitting the Links

Two decisions regarding linking are making waves in recent days. First, there's an Australian court's holding that, at least in this particular fact pattern, linking to unauthorized MP3s is copyright infringement. If that got the usual suspects a bit riled up, Live Nation Motor Sports v. Davis won't ease their nerves any. Plaintiff is the presenter and promoter of the Supercross series of motorcycle events, and streams live audio webcasts of those events from its website. Defendant runs a Supercross fan website, at which he provided links to plaintiff's audio webcasts. Plaintiff alleged this activity constituted copyright infringement, and sought a preliminary injunction. On that count, the U.S. District Court for the Northern District of Texas held thusly:

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.(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."(emphasis mine)

It should be noted that defendant's website, for obvious reasons, no longer contains the offending links (it does offer up all the docs filed in the case), and the holding doesn't address exactly how the links were presented or what a visitor saw when he clicked on a link. Let's leave aside for the moment the question of whether a link from one website to another ever needs to be "authorized." Does the link pop open defendant's proprietary player, or does it merely launch the stream as intended, in Windows Media Player? The court doesn't say, and so apparently doesn't believe such a distinction relevant. By way of example, here's a link to an archived Supercross webcast. As you can see, it opens and plays in Media Player. Am I copying the webcast? Am I publicly performing it? After all, the stream never crosses the server on which this site is hosted. For that matter, what about all those links to esteemed blogs over on the right of this webpage. Am I copying or publicly displaying the content of those blogs merely by providing you that link?

Update: "Deeply disturbing" says Prof. Patry. Evan Brown analogizes to Perfect 10.

Side note: Live Nation/SFX claims Supercross is the second most popular motorsport in the U.S., surpassed only by Nascar. Sunday Sunday Sunday, you'll pay for the whole seat, but you'll only need the edge, etc. etc.

posted by Matthew Saunders @ 5:03 PM