Results 1 to 10 of 10
  1. #1
    ABW Ambassador simcat's Avatar
    Join Date
    January 18th, 2005
    Location
    Denver
    Posts
    1,786
    "deep" links illegal?
    " What's unusual in the SFX case is that a copyright holder is trying to prohibit a direct link to its own Web site."
    http://news.zdnet.com/2100-9588_22-6145744.html

    I thought this had all been hashed out years ago...

  2. #2
    Outsourced Program Manager Nick Prussakov's Avatar
    Join Date
    July 23rd, 2006
    Posts
    220
    Another case of judicial activism when the actual statute is silent on the matter. Can't see any potential losses for SFX.

  3. #3
    .
    Join Date
    January 18th, 2005
    Posts
    2,973
    This is a somewhat different issue than linking to a web page - this is linking directly to a video (so that it launches the video by itself in Windows Media Player) instead of linking to the web site page that is normally used to display the video in context with other material (including paid advertising).

    But based on the information in the judge's ruling, and on my knowledge of how "internet links" work, the ruling is legally incorrect. The ruling is probably also wrong on First Amendment grounds, but apparently the defendant never argued that issue.

    According to the defendant's web site, he has appealed and an order has been issued staying the injunction -- meaning the judge's ruling has effectively already been overturned.

    The issue might be harder to decide if the defendant was actually embedding the video into his own web page, but from the judge's ruling it appears he was merely providing a standard hyperlink which launched the webcast in its own window.

    Certainly, this is an issue better addressed via technical strategies than through litigation.

    The article makes clear that the defendant chose to represent himself and apparently demonstrated some contempt in his court filings, which may explain the outcome. The judge apparently decided that the key issue was whether the defendant was "performing" the copyrighted material, and it seems quite clear that the judge was confused by the defendant's legal filings. The actual legal order is: "Defendant Davis, his company TripleClamps, any officers, agents, servants, employees, representatives of Davis or TripleClamps, and all others acting in participation or concert with them, are hereby preliminarily enjoined and restrained from providing internet links to SFXs audio webcasts of its racing events, or otherwise displaying or performing SFXs audio webcasts."

    Note that judges don't have time to do lots of independent legal research, and certainly aren't required to have any specific technical knowledge, so if the defendant fails to provide appropriate citations to legal precedents and statutes, nor a clear explanation of why a "link" is not a "performance" of copyrighted material, the court is likely to rely on the opposing party's legal arguments.

    In this case, the defendant pointed out that even if his link is removed, there are thousands of other links so that racing fans will continue to have access to the webcast; the judge accepted this as a reason why the public would not be harmed by the ruling. Of course, that completely undermines the judge's conclusion that granting the ruling would prevent the "serious injury" which the plaintiff asserts.

    It appears that the defendant (foolishly) failed to assert any First Amendment arguments in the case.

    Note, too, that this is not a final decision -- it grants a preliminary injunction to prevent the defendant from "performing" (linking to) the webcasts.

    The judge's actual written ruling is visible at
    http://www.steptoe.com/assets/attachments/2770.pdf

    Note: This post was edited after Noth's comment was posted (below), so don't rely on his stated agreement with me -- he seems to be agreeing to only the first paragraph of this revised post.
    Last edited by markwelch; January 16th, 2007 at 09:59 AM.

  4. #4
    Analytics Dude Kevin's Avatar
    Join Date
    January 18th, 2005
    Location
    Rochester, NY
    Posts
    5,904
    I actually briefly covered this exact topic in my blog. Mark is right on the nose. Linking is one thing, but this is almost a 2.0 version of hot linking images.

    When webmasters put original content on their sites, they expect it to be viewed on their site, unless they have purposely made it available for syndication.

    Had he simply linked to the page, there would have been no issue. But since he was displaying the "borrowed" media on his own site, it would be a copyright issue.
    Kevin Webster
    twitter: levelanalytics

    Kayak Fishing
    Web Analytics and Affiliate Marketing

  5. #5
    .
    Join Date
    January 18th, 2005
    Posts
    2,973
    Oops. Just before the half-hour cutoff for editing posts, I edited my earlier post to add this paragraph: "According to the defendant's web site, he has appealed and an order has been issued staying the injunction -- meaning the judge's ruling has effectively already been overturned." Oops.

    In fact, the defendant has merely asked for an order staying the injunction, and did it pretty poorly -- so the injunction is apparently still in effect.

  6. #6
    Outsourced Program Manager Nick Prussakov's Avatar
    Join Date
    July 23rd, 2006
    Posts
    220
    Not familiar with the US legal practice but in the UK issues that are technical are better resolved through arbitration. Here, the judge seems to have merely relied on a better structured argument of the claimant, as Mark said.

    Anyone actually aware of what the US copyright law says on the matter, though hot-linking does sound like a plausible argument?

  7. #7
    ABW Ambassador
    Join Date
    January 18th, 2005
    Location
    Los Angeles
    Posts
    4,053
    The direct link to the media file itself is provoking a performance, so that performance is occuring from the linker's site.

    IMHO it's no different from running an executable CGI script on a site that's located on someone else's site. It's happened a lot with unprotected formmail scripts to send out spam from an unsuspecting 3rd party's domain. That's why captcha's are used - to prevent unauthorized use.

    This is as close as I could find

    http://www.chillingeffects.org/keyword.cgi?KeywordID=27

  8. #8
    ABW Ambassador
    Join Date
    January 18th, 2005
    Location
    Los Angeles
    Posts
    4,053
    This is *not* a matter of simply deep-linking to a site. This is a case of one site displaying a performance on their own site by hotlinking, and it's covered a-plenty as would be any motion picture under law.

    If a copyrighted work is performed, then there needs to be permission by the legal owner of the work, and the one showing the performance, if they have permission, needs to pay royalties to the legal owner - which is the other site.

    The offender is displaying a copyrighted creative work on his site and is in violation, as is covered by intellectual poperty laws as they relate to properties in the motion picture industry.

    Plenty of coverage on the topic, the infringement is just executed a little differently via the web

    http://www.google.com/search?hl=en&q...=Google+Search

    Covered nicely here - it's being displayed by "any other process" which in this case is a hotlink.

    http://www.law.cornell.edu/uscode/17...1----000-.html

    To display a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovis­ual work, to show individual images nonsequentially.

  9. #9
    .
    Join Date
    January 18th, 2005
    Posts
    2,973
    Webworker wrote (2 posts above): "The direct link to the media file itself is provoking a performance, so that performance is occuring from the linker's site."

    But any hyperlink "provokes a performance" of the destination content, whether it's an HTML web page, a Flash file, a PDF document, or a video file.

    Under your argument, if I include a hyperlink from my web site to http://www.ABestWeb.com/ then my site is "performing" the material at that site.

    You seem to be arguing that linking to a video file is somehow "different" from those other types of hyperlinks. How so?

    Webworker wrote (1 post above): "This is *not* a matter of simply deep-linking to a site. This is a case of one site displaying a performance on their own site by hotlinking, and it's covered a-plenty as would be any motion picture under law."

    I don't undersand: what is the difference between a "deep-link" and a "hotlink"? My understanding is that a "hotlink" refers simply to a hyperlink (a link from one internet file to another), while a "deep link" refers to a hyperlink which bypasses a site's home page and its intended sequence or structure.

    I'm not sure I understand the arguments here, because the actual facts of the case are not clear. One fact is clear: the actual video files are NOT being copied onto another web server for distribution -- they are being loaded by the end user via ordinary URL (file requests) from the copyright owner's web site.

    Since we are probably not actually talking about the same situation, let's try looking at four specific scenarios, ranging from "integrating" video content to merely "linking" to a home page.

    (Scenario 1) My web page includes a video-display window which displays video which is being streamed from another web site. Since I am integrating someone else's content within my site, I think it's a copyright violation, certainly as a "derivative work."

    (Scenario 2) My web page does NOT include a video-display window, but uses an ordinary hyperlink to link directly to a video file on another web site. How is this different from a hyperlink to a web page? (My understanding is that THIS is what is involved in the Davis case.)

    (Scenario 3) My web page links directly to a "subsidiary page" at another web site, but bypasses the site's "home page." (For example, I link to http://forum.abestweb.com/showthread.php?t=84202 instead of linking to http://forum.abestweb.com/)

    (Scenario 4) My web page links to another site's home page.

    Assume in each scenario that I refuse to remove the link after the destination web site's owner asks me to do so.

    Analysis: In example 4, clicking on my hyperlink causes the destination web site to be copied and displayed on the local computer; if that's enough to be a "performance," then the only reason the "linking cases" all failed was because there was an implied license (you wouldn't put your home page on the public internet unless you wanted people to see it).

    In example 3, which was typical in early "linking cases," the owner of the destination site sought to maintain control over the sequence of pages seen by a visitor, but I think these cases all failed also.

    In example 2, the only change is that the hyperlink is to a video file instead of to a web page. Would it make a difference if the link were to a Flash script?

    In example 1, there are several copyright issues, including creation of a "derivative work." The comparison here would be to sites that "frame" the content of other sites, displaying an ad on top of the page that is not part of the actual third-party web site.

    A key issue, I think, is the fact that there are simple technical tricks to prevent "framing," just as there are simple technical tricks to redirect "deep links" to a home page, or to redirect "direct links to a video file" to load the full web page instead of just the video file.

    The NATURE of the internet is that if you post a file in such a way that it will be displayed if requested by its URL, then you are impliedly granting a license to anyone to load that file (whether it is a photo, video, web site, or script) using an ordinary URL. If you don't want people to load the file by its URL, you should find another way to display your content on the internet.

    Nick wrote (3 posts above): "Not familiar with the US legal practice but in the UK issues that are technical are better resolved through arbitration."

    I don't think that an arbitrator can grant injunctive relief (here, a preliminary injunction prohibiting the conduct being sued over), since such orders can only be issued by a court. It is possible that if two parties agreed (for example, in a contract) that the arbitrator could grant injunctive relief, then a court would issue an order in accordance with the arbitrator's ruling, but in this case there is no contractual relationship between the two parties. In addition, while arbitration usually results in a faster "final decision" than court litigation, it doesn't start as quickly.

    As to the "technical" issue, I believe most courts have the power to order specific aspects of a case to be heard by a "special master," who can devote more time to understanding technical issues. However, the resulting fees usually must be paid equally by the parties until a final decision is reached, and this would probably only serve to end the litigation when there is a self-represented litigant who can't afford an attorney.

    Yes, I am an attorney, although I have not actively practiced in the past 10 years and I haven't worked on any copyright matters since 1993 (thus I haven't closely followed the legal cases in this area).
    Last edited by markwelch; January 17th, 2007 at 12:15 PM.

  10. #10
    Outsourced Program Manager Nick Prussakov's Avatar
    Join Date
    July 23rd, 2006
    Posts
    220
    Interesting point regarding linking to whatever type of file (html, avi, jpg, sfx), Mark. Now I wonder how this ruling will be interpreted in future if this case is to set a precedent. The whole web will become illegal, with any kind of links prohibited... But I guess it will be overturned on appeal when knowledgeable people will look into the matter. The only doubt is as to the costs of litigation...

  11. Newsletter Signup

+ Reply to Thread

Similar Threads

  1. Should I have a "links"" page on my blog?
    By dorono in forum Blogging, Mobile and Social Media
    Replies: 9
    Last Post: November 3rd, 2010, 09:45 AM
  2. Replies: 2
    Last Post: July 29th, 2005, 01:51 PM
  3. Can "Deep Linking" Lead to Deep Trouble?
    By Andy Rodriguez in forum Midnight Cafe'
    Replies: 1
    Last Post: May 17th, 2002, 05:24 PM

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •