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Texas court bans deep linking
Apparantly you cant link to someone else's content in Texas

 7:42 am on Jan 24, 2007 (gmt 0)

A court in Dallas, Texas has found a website operator liable for copyright infringement because his site linked to an 'audio webcast' without permission. Observers have criticised the judge for failing to understand the internet.


Interesting judgement. The judge ruled that the guy was breaking copyright because he linked directly to a media file.

Critics, including Google copyright lawyer, think the judge dosen't know what he's talking about.

Wonder if this will get overturned?



 3:33 pm on Jan 25, 2007 (gmt 0)

The stream was not embedded in the page in any way, it was just a link. If there's something wrong with that then it means that if I find any audio file on the web and give you the link to it I am infringing upon copyright.

Let's say you built a web page that was simply a list of links to audio files that are sitting on my server. Your visitors then click on the links and download the audio and think "gee, that sure was nice of vvv to offer all of these audio files on his site". And maybe you have some Adsense ads sitting next to these links that these visitors occasionally click on, and maybe your PR goes up because you're offering somebody else's audio files on your web page for free.

Is the situation described above something you would approve of? I'm not saying it's an issue of copyright infringement, just that it is not the right thing to do.

In my opinion, whether a media file is embedded into a web page or pops up in a new window it is still hotlinking.
Send your visitors to the content owner's web page, not directly to their media files.


 7:25 pm on Jan 25, 2007 (gmt 0)

Sounds a lot like Napster of old. A directory of "links" to files on other computers/servers.

If I remember correctly, Napster was held liable for providing access to copyrighted content.

Same is true in this case.


 7:46 pm on Jan 25, 2007 (gmt 0)

Some years back AOL had linked to our real videos making them play inside their html frames together with their ads.

Such hotlinking should require the authors permission. Bandwidth can be enormous and thugs all over the world try to make money by stealing left center and right.


 8:01 pm on Jan 25, 2007 (gmt 0)

axgrindr, if you want to stop people from linking directly to files then it's up to you to insure the user has originated the click to the audio file form your site. It's simple and effective.



 8:02 pm on Jan 25, 2007 (gmt 0)

can you tell me which law makes it illegal?

It's not the linking that is illegal, but causing the video to play through that link. It's a very fine point, and it's part of general copyright principles.

It's the same as: I want to do a seminar and play a DVD movie (which I bought and legitimately own) to make a point about leadership). Despite the fact that I OWN the DVD, and don't copy anything at all, the "performance" of this DVD in a public venue is a violation of copyright.

Because I do not own the RIGHTS to cause it to be performed in public.

It's the same if I want to play copyrighted music.

This performance principle is well established, and has been enforced (sometimes with large penalities determined by the courts).


 8:30 pm on Jan 25, 2007 (gmt 0)

lunaC, they didn't steal the tv because the door was open, they walked in and watched the tv and then left.

You say it's different than google because you can control google with robots.txt or htaccess but not hotlinkers.

Well THAT is my point.

You're basically saying it's okay for google because I left the door unlocked by not keeping them out with robots.txt.

I say just because I didn't lock my door doesn't mean they can come in and take my stuff.

It's a very slippery slope, but with google images, what are they doing that is so different?

The guy linked to the file, but the file was playing FROM THE ORIGINATOR'S WEBSITE!

So google can use it if for instance it was an image file instead of media because the guy didn't deny google access to it, but the other website cannot?

Do I need to put a sign in my yard with the names of every person in the United States on it saying they cannot come in and if I leave someone off, are they then welcome to anything in my garage?


 9:00 pm on Jan 25, 2007 (gmt 0)

I wonder if this judge gets his email printed out and read to him because he is affraid of the computer? Let alone the internet.


 9:36 pm on Jan 25, 2007 (gmt 0)

Absolutely and completely agree with vincevincevince.

People who compare this to television or any other media broadcast need to have their perspectives re-arranged, and are missing almost entirely the nature of the web (which is the fallacy in this judge's head).

Browsing ANY webpage, listining to ANY stream or media content by definition indicates that it is being downloaded unto one's computer. If someone freely and clearly wishes to have their content viewed by people, they are, by definition, stating the desire for people to download this information.

How the downloaders use this information IS protected by copyright. But someone else hotlinking to any such information for the purpose of downloading is doing nothing but providing another method in which the original releaser's desire is being fulfilled.

By that rationale, if you create a new browser that does nothing but download streams from webpages and provides the rest in text format, is that considered copyright violation? Certainly not. Firefox and IE display webpages in different methods... does that give people the right to sue them for copyright violation (by the same premise that they are serving their content in a way that is arbitrated by the browsers, not the way the original author intended)

Only the uninformed can loosely conclude that this is infringement from the perspective that "he's stealing my bandwidth and i'm not getting money from those impressions!". That has nothing to do with copyright.

Hotlinking is nothing different than another method of "browsing". It is your job to prevent other "browsers" from serving your stuff in a manner you do not want.

if you make it readily available for "browsing", then it is going to be browsed in ways you can't control.


 9:39 pm on Jan 25, 2007 (gmt 0)

From the original article, here's the precedent the defendant is depending on [ETA - the boldface is my own emphasis]:
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."

Then the article writer says:

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.

--and that's being said by someone whose article seems to basically be on Davis's side.

The distinction [without framing] is an important one. Since it's in brackets, I'm assuming the author added it to boil down a lot of previous text. The Tickets.com case - at least what's reported of it in the article - seems to be about causing harm through deception (or, actually, about not doing so). Thus the [without framing] distinction. This case allows deep linking as long as it isn't deceptive.

If site A created the recording and held the copyright, site B was using it with permission (e.g., through a licensing agreement), then site C takes it from site B without permission (from either site A or site B), I don't believe site B could sue for copyright infringement - site A would have to do that. But I don't think that means site B couldn't sue on other grounds. If we use the judge's analogy, the NFL owns the copyright, NBC is licensed to show it, and someone else gets hold of NBC's recording and shows it publicly, claiming to be the license holder and inserting their own ads where NBC's would be. NBC wouldn't be able to sue for copyright infringement, but couldn't they still sue for damages?

[edited by: Beagle at 9:45 pm (utc) on Jan. 25, 2007]


 9:50 pm on Jan 25, 2007 (gmt 0)

Did he really just link to the file or did he embed the file via a link on his site? There is a difference.


 9:57 pm on Jan 25, 2007 (gmt 0)

>>Here Come The Judge!

And the judge appears to understand the internet very well.


 10:25 pm on Jan 25, 2007 (gmt 0)

Wow, this can be a large issue for the myspace hotlinkers!


 12:35 am on Jan 26, 2007 (gmt 0)

... But a bigger issue for those who claim they can't tell a deeplink from a hot one ;)

But this discussion has been circular for a while; we won't convince them, because they don't want to be convinced. :)


 12:35 am on Jan 26, 2007 (gmt 0)

I think what this comes down to, for me, is that if this guy is breaching copyright then it means it is illegal to tell someone the URL for an audio or video stream. That's a pretty major thing to say.

This case is entirely different to someone who 'embed's or otherwise causes the stream to be displayed as a seamless part of his or her website - this case is about giving the public the URL to an audio stream. It's important not to comfuse the two.

Two more points in favour of the linker:
1. There is a rather perverse logic in suggesting it is better to link to the HTML page on the owners site rather than to the stream itself. The HTML page may well change and link to newer content, really confusing visitors.

2. The entire purpose of a URL is to allow access to content - if it is not intended to be accessed via the URL then there is no need to use one. It remains entirely possible to stream audio or video directly from a server without using a URL. I suggest the fact that a URL was created for the content means that the owner is deliberately providing the means of direct access to that content.


 12:41 am on Jan 26, 2007 (gmt 0)

So despite a variety of opposing opinions lets say the case stands and this form of linking is outlawed.

What of the future? How can this be enforced, and what will the penalties be.

Will this issue be addressed in a revision of DMCA?

Will there be a clear distinction between video / audio media and written content? (i.e. will it be ok to link to a page of text rather than a video file?)

I believe that this ruling will stand because of the way people think about media delivery (a broadcast model), but how it's going to be enforced is another matter!


 6:23 am on Jan 26, 2007 (gmt 0)

Can't say I'm unhappy about hot linking being outlawed.

Let me check my logs, I feel a lawsuit coming on...


 7:59 am on Jan 26, 2007 (gmt 0)

incrediBILL - perhaps you can explain why this is hotlinking and not plain ordinary linking? I've never seen hotlinking applied to the case where an ordinary link goes to someone else's URL. I've only ever known of hotlinking to be in connection with embedded graphics, video or audio.


 1:31 pm on Jan 26, 2007 (gmt 0)

I think what this comes down to, for me, is that if this guy is breaching copyright then it means it is illegal to tell someone the URL for an audio or video stream. That's a pretty major thing to say.

I tend to agree with this. I'm not so sure about the copyright infringement part of the case and I agree if it's on the internet it's meant to be seen or heard by anyone.
But I still think what Davis did was wrong in that he hotlinked directly to someone else's media file without permission and without acknowledgment of the source of the file, essentially passing it off as his own.
Maybe he should be found guilty of being a bad webmaster. Is there a law on the books for that yet?


 2:04 pm on Jan 26, 2007 (gmt 0)

perhaps you can explain why this is hotlinking and not plain ordinary linking?

He allowed the file to be played directly from his site, without acknowledging the copyright owner & depriving the owner the opportunity to receive revenue for their property. Whether it was "embedded" or not is irrelevant. I'd personally call it hotlinking but that is irrelevant too.

It certainly isn't simply deep-linking. The judge seems to "understand the internet" better that the author of that article.


 4:00 pm on Jan 26, 2007 (gmt 0)

From the OP:

the guy was breaking copyright because he linked directly to a media file

Great news. Absolutely fantastic. Terrific!

Regardless of what some people think about their interpretation of the copyright and the "nature of the Web" - this ruling was long overdue.

Hotlinking is all about displaying content that I own and provide to my users on a web site designed and controlled by me. I did not ask for additional ways to distribute that content. I do want to keep control over where and how that content appears. I do not want to see my content presented to visitors out of context, e.g. on an ugly Myspace page, possibly next to ads where the hotlinking site gets paid for, directly or indirectly.

And no, I am not responsible for dis-allowing access to the media files, because this is not how copyright works. The copying/hotlinking site needs to seek permission.

So, yes, I am all in favor of this ruling! I see some nice lawsuits coming up. :-)


 4:18 pm on Jan 26, 2007 (gmt 0)

go on ..I'll say it :)..and that leaves google cache where ..thats your content entire pages ( no snippets like in serps )..with images and media being pulled live from your server ..just like hotlinked ..in fact that is exactly what they do in cache they hotlink ..framed with their brand on the frame ..at the top ..

and you have to dissallow their bot ..or accept that they do it ..serps is one thing ..cache with their branding is rip off hotlinking ..and brings you no traffic ..but cost you bandwidth ..the images and media are pulled live from your server every time cache is veiwed they are pulled again ..they only cache the html part on their servers ..

edited for clarity

[edited by: Leosghost at 4:22 pm (utc) on Jan. 26, 2007]


 4:47 pm on Jan 26, 2007 (gmt 0)

are frames now also illegal?


 4:53 pm on Jan 26, 2007 (gmt 0)

Yes. I'm pretty sure frames have been illegal since 1996 ;-)


 5:00 pm on Jan 26, 2007 (gmt 0)

Did he really just link to the file or did he embed the file via a link on his site?

From [news.com.com ]
He did stress that he merely included a "hyperlink, which launches the visitor's media player"

That's not hot-linking in the strict sense of the term, but the effect is largely the same: it uses the other guy's bandwidth without sending the visitor to his site.

Now, when another asks me to take down a link to their site, I'm polite enough to take it down. Still, it seems like technical solutions would have been much easier (and cheaper) for the plaintiff than the lawsuit. Someone should tell him that a good webmaster is cheaper than a law firm.


 5:42 pm on Jan 26, 2007 (gmt 0)


I do not have a problem with the way Google approaches this topic. Actually I would allow their bot in the second they ask for it. :-)

But I do have a lot of problems with other sites (i.e. other than the big guys) hotlinking and ripping off my content. Many of these do not even link back to my site. They do not bring traffic, so why allow it?


 8:36 pm on Jan 26, 2007 (gmt 0)

What about all the TV websites online linking to real streams and some charging to watch. What are media search engines doing when they link to a video stream.


 2:15 am on Jan 28, 2007 (gmt 0)

I agree to post#2 from Marcia, deep linking directly to the emdia file is definitely wrong. It is basically stealing content/bandwidth without actually having the visitor visit the page. But actually deepling to a page, which is indexed in the search engines? I don't know. Sounds Weird.


 6:39 am on Jan 28, 2007 (gmt 0)

Pardon my bluntness but this ruling is hogwash in my opinion.

In the internet circles I'm a part of it's neccessary to include press releases verbatim. A good many of those releases include links to files containing a full copy of the legal script for download. Although I can (and must) copy the article verbatim when passing along the press release I am not allowed to make a copy of the download available from my site. It too must remain on the originating site and its link must stay intact. This ruling would constitute two ships colliding in the night so to speak.

I'm positive this wouldn't be the only case out there where two laws directly contradict on these matters.


 10:03 am on Jan 28, 2007 (gmt 0)

This ruling would constitute two ships colliding in the night so to speak.

Since the content owners are asking you to do this it sounds like you have permission to link to those documents.
Davis did not have permission and the content owner did not want him linking directly to their audio stream.
Had he sent them to their web page instead it probably would have been a different story.


 2:11 pm on Jan 30, 2007 (gmt 0)

[Post deleted by Beagle because after rereading the original article again I decided I didn't know what I was talking about.] :o

[edited by: Beagle at 2:24 pm (utc) on Jan. 30, 2007]

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