Robert Davis runs Supercrosslive.com and put
direct links on his site to audio streams of motorcycle racing.
Those streams were created, owned and hosted by SFX Motor Sports,
which is behind some of the events covered.
A preliminary injunction was granted on 12th
December by Judge Sam Lindsay in the US District Court for the
Northern District of Texas. Judge Lindsay followed that ruling with
a summary judgment for SFX on 9th January, leaving only damages to
be determined at trial, on the same day that Davis filed an appeal
against the December ruling.
Judge Lindsay ruled that Davis's activity
infringed copyright and curtailed the ability of SFX to sell
advertising and sponsorship on its site. That advertising is
displayed when the audio streams are listened to from the SFX site
but not when they are linked to from Davis's.
In fact the December opinion was unclear on
the exact nature of Davis's activity. SFX asserted that "Davis
'streams' the live webcast of the races on his website in 'real
time'". Davis denied streaming but admitted to "providing an audio
webcast 'link' to the racing events on his website". Judge Lindsay
appears to accept that Davis is only linking to a media file, not
streaming content from his own site.
"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," wrote Lindsay in his December opinion. "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."
Davis argued that he did not actually copy any
material, he only provided a link to it which opened the material
in a user's media player, but the court ruled that that link broke
the law.
"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," said Lindsay. "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."
Judge Lindsay did not look to other cases on
deep linking, being hyperlinks that target something other than a
website's homepage. Instead, he looked at cases on live television
broadcasts. He compared Davis's actions to those of a company sued
by the NFL for the unauthorised capture and satellite transmission
of live football broadcasts to viewers in Canada. Finding
infringement, that court said a public performance or display, for
the purposes of the Copyright Act, "includes each step in the
process by which a protected work wends its way to its
audience."
The opinion and summary judgment prompted one
blogger, James Robertson, to accuse Judge Lindsay of having
"no
idea how the internet works." Davis was representing himself in
his case, without the assistance of a lawyer. Perhaps guided by
comments from various bloggers (including William Patry, Senior
Copyright Counsel at Google, who called it "a
deeply disturbing case"), Davis's appeal argues that since the
December ruling he has "become familiar with" a 2000 decision on
deep linking.
"Had this court been aware of this prior
decision, Defendant believes this court may have produced a
different ruling," wrote Davis in his latest motion of 12th
January, which asks the court to stay the order of 11th December
pending his appeal (though it makes no reference to the Summary
Judgment handed down three days earlier). The case to which he
refers is the dispute between Ticketmaster Corp. and
Tickets.com.
Tickets.com, a seller of tickets, was sued for
linking to pages on Ticketmaster's website where users could find
tickets not available at Tickets.com. The US District Court for the
Central District of California concluded: "hypertext linking
[without framing] does not itself involve a violation of the
Copyright Act … since no copying is involved."
That court went on to describe the process of
hypertext linking: "The customer is automatically transferred to
the particular genuine web page of the original author. There is no
deception in what is happening. This is analogous to using a
library's card index to get reference to particular items, albeit
faster and more efficiently."
However, if an appeal is heard, unless Davis's
site made clear that the target file was being served by another
website, SFX may be able to distinguish its circumstances from
those of Ticketmaster.
Davis's site has become a repository for court
documents and links to coverage of the case.
