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




msg:3229838
 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.

[theregister.co.uk...]

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?

 

Marcia




msg:3229841
 7:50 am on Jan 24, 2007 (gmt 0)

If he was linking to the page on the other site to send visitors to the media file it would be one thing. But linking directly to the media file itself for it to be performed on his site is definitely in violation of copyright law.

axgrindr




msg:3229870
 8:35 am on Jan 24, 2007 (gmt 0)

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.

Sounds like Davis was basically hotlinking.
Delivering someone else's media to benefit his visitors, not only using another site's copyrighted material but also their bandwidth.
He should have linked to the other site's page that contained the links to the broadcasts, not the broadcasts themselves.

Seems to me the judge has a pretty good grasp of "how the internet works".

vincevincevince




msg:3229874
 8:58 am on Jan 24, 2007 (gmt 0)

Google links directly to my PDF file downloads instead of to the page from which the downloads are available. Can I sue?

Also - look at this!
Search for flash movies at Google [google.com.my]

axgrindr




msg:3229877
 9:05 am on Jan 24, 2007 (gmt 0)

Can i sue?

Probably not, but you can easily disallow your pdf in a robots.txt file and it will no longer be listed.
You have the choice of whether you want Google to promote your pdf or not.

Sounds like Davis didn't want to take down the link.

Syzygy




msg:3229888
 9:24 am on Jan 24, 2007 (gmt 0)

Possibly this is the crux of the matter?

Judge Lindsay did not look to other cases on deep linking... 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."

Syzygy

[edited by: Syzygy at 9:26 am (utc) on Jan. 24, 2007]

Marcia




msg:3229895
 9:32 am on Jan 24, 2007 (gmt 0)

PDFs and Flash have crawlable, browser accessible URLs.

Streaming video is a not simply a "file" - it's a performance, and like other performable media needs the permission of the copyright owner, and royalties should be paid for each time it's shown.

The rules about media are specifically covered in copyright law.

vincevincevince




msg:3230047
 12:45 pm on Jan 24, 2007 (gmt 0)

Look at it in a precise and technical fashion. Ignore preconceptions about what has happened here and find the corpus delicti - the actual evidence that some offence has actually taken place.

1. The defendant used his computer and copied a string of not more than 50 characters from one web page owned by the plaintiff and pasted it into a website under his own control.
2. The defendant also typed some text describing what would be found by those following the link - that text was not copied from the plaintiff and so can be safely disregarded.

Where, therefore, has copyright violation taken place? The URL, as fewer than 50 words in length - and indeed fewer than 50 characters - is not prohibited by copyright law.

Without a crime there can be no conviction.

I am fed up with seeing professionals in the IT industry taken to court not over something they have done but over something which happened afterwards, normally through the deliberate action of an uncharged third party.

If it is an offence to request the stream without having visited the website (which I doubt) then the person charged should be the person who clicked the link not the webmaster who provided it. Do you see gun retailers charged with murders by their customers?

This judgement is absolute nonsense. A link is a link. It is not infringement of copyright in any way, shape or form.

The only thing that was copied was the URL. Yes, the Uniform Resource Locator. Note the word 'Locator' - because that's all it is - something to help locate something.

There are many technical ways to stop anyone linking directly to the URL. Single-session URLs, HTTP_REFERER checks, cookie checks and password protection all spring to mind. Nobody with the technical expertise to set up live streaming at such a scale would need more than minutes to set up any of those checks.

I don't think it's that this judgement needs to be thrown out of court - I think it's more the judge.

If I found the phone number of a local store from the Yellow Pages and published it on my webpage about that store, it would be crazy for the Yellow Pages to sue me for allowing people to find the phone number for that store without seeing all their adverts around it.

stever




msg:3230095
 1:42 pm on Jan 24, 2007 (gmt 0)

Note the bit on the actual court papers where it says Civil Action?

Quadrille




msg:3230266
 3:51 pm on Jan 24, 2007 (gmt 0)

Two words on a document never hurt anybody; but if they are a forged signature, there are effects.

At the very least, this guy was 'passing off' the download as something he had rights to; once clicked, he was 'inciting*' people to download without the knowledge or consent of the owner, thus effectively defrauding the owner of the property rights and the bandwidth.

The Judge was absolutely right, morally and in law, to recognise that the process involved a number of actions, each, taken separately, may be perfectly harmless - taken together, it's theft.

The Internet is rife with such crimes - hotlinking images being a good example - where the value lost is so small, no-one bothers to chase it. But theft is theft, and it's good to see a little bit of action against the web parasites, who link, steal and clone instead of creating their own stuff.

I read on SEO-Kolkata's blog recently: "According to Hans Peter Brondmo of Plum during the SES San Jose session “Marketing with Social Media“, 1% of those involved with social media are creating content, 10% will enrich that content and 90% will consume it." - leaving aside the fact that he can't add up, what he really means is "0.1% are creating content, 9.9% are stealing, plagiarizing, quoting or misquoting that content, and 90% don't know the difference."

Brondmo said it, or somthing like it, someone wrote it up, a bunch of bloggers took it from each other, and now I've taken it. My excuse is that I've taken a little bit to make a point; I'm quoting my sources (original and actual), and getting no adsense revenue.

Is it really so difficult to see the difference between creating something new and unique, and simply taking someone else's creation?

*not the right word, but it's close.

[edited by: Quadrille at 3:58 pm (utc) on Jan. 24, 2007]

axgrindr




msg:3230310
 4:31 pm on Jan 24, 2007 (gmt 0)

Do you see gun retailers charged with murders by their customers?

If the gun retailer put the gun in the customer's hand, told them who to shoot and that it would be ok because he owned the gun, maybe.

Analogies aside, it's not too much different than the webmasters who copy a simple Uniform Resource Locater to take someone else's web page, plug it into a frame on their site and slap their Adsense ads all around it.
He is taking someone else's content (and bandwidth) and showing it to his visitors as his own, and most likely profiting from it in some way.

shortbus1662




msg:3230325
 4:39 pm on Jan 24, 2007 (gmt 0)

shouldn't it be the responsibility of the website owner to make sure the file does not play when linked directly to?

I mean, otherwise it's going to be scooped up by google, etc. and then they too will be in violation.

I'm not sure how it's done, but cannot the website verify the referrer before serving up a page?

For instance, someone had posted a link to an article on a related topic on one of my forums. The link to the article which was posted near the top of the page, before the article was a redirect from google to the article page.

I took out the redirect and pasted the link directly to the page.

Once I did that, the content would not show and it asked me to register.

I realized that they were allowing only google traffic to read the page and no other referred user was allowed to view the article. Once the article page was navigated away from, the visitor was again asked to register.

I reincluded the google search url back into the page and the link worked again.

Is this not a similar circumstance?

Beagle




msg:3230373
 5:14 pm on Jan 24, 2007 (gmt 0)

The headline used is misleading. Deep linking and hot linking are not the same thing. If I'd just read the headline, I would have thought the judge was completely off-beam. The details tell me he knows what he's talking about. It makes me wonder about the agenda of whoever wrote the headline (on the original article, that is - I realize the OP was simply referring to what was there).

nippon




msg:3230886
 1:05 am on Jan 25, 2007 (gmt 0)

I guess my confusion is where does content stop and performance (i.e. audio/video) start; Why is there (is there?) a distinction and if hotlinking to the media file is in violation of copyright, does the same apply for linking to a page on another website?

Why is there apparent dispensation for google (providing a public service) to cache stuff (and display adsense), yet others are not allowed to act in a similar way - my linking to your file is benefiting my visitors is it not?

Yes bandwidth theives suck - but what is google images all about? That takes a lot of my bandwidth and makes it easier for people to steal my content!

This seems to be a very difficult problem which new media like the internet throws up and relying on old ideas such as a tv broadcast distribution system dosent seem appropriate to me, but I can see the judge's point.

vincevincevince




msg:3230904
 1:34 am on Jan 25, 2007 (gmt 0)

I really cannot see the point of those who think that this is infringing upon copyright. The poor guy hasn't copied anything or even allowed someone else to make or view a copy of something.

Every single person who saw that feed saw it directly from the correct and licensed location.

Those who say this is like framing or hotlinking are wrong. It's nothing of the sort. This was a link and nothing more. Links to all kinds of content have been a normal and proper part of the world-wide-web since it started.

Marcia




msg:3230925
 2:14 am on Jan 25, 2007 (gmt 0)

Try linking to a performance of Led Zeppelin that'll show playing at YOUR site and see how much the owners/copyright holders consider it the same as linking.

A small bit of something can be shown if it's *Fair Use* and properly accredited, but showing race performances from the guy's own site is piracy. The copyright law is VERY specific about performances, and it doesn't even halfway resemble sending visitors by a link to where it can be legally shown.

Why didn't he just do a regular link to the page with the media so his visitors could go there instead? Explain that.

LunaC




msg:3231019
 4:36 am on Jan 25, 2007 (gmt 0)


shouldn't it be the responsibility of the website owner to make sure the file does not play when linked directly to?

I mean, otherwise it's going to be scooped up by Google, etc. and then they too will be in violation.

I'm not sure how it's done, but cannot the website verify the referrer before serving up a page?

No, it shouldn't be the copyright owners responsibility. Thats like saying "Well the door was unlocked so I took the TV". That's still stealing the TV.

Google can be stopped by robots.txt, hotlinkers can not.

As for being able to protect against hotlinkers, some file types are easy to protect, as long as everyone would show their referrer. It's becoming more and more common for people to disable that, either knowingly or (often) unknowingly. Many firewalls disable it and never mention it to the user. As far as I remember other filetypes (video and audio) are more difficult to protect without annoying visitors (requiring registration etc.). Content creators spend too much time as it is protecting what is rightfully theirs, and get precious little time creating new content.

Reading that article I have to say I'm on the side of the judge 100%, Davis hotlinked a file and got caught. I see no reason for him to not link to the page the file was on. I'm also very much questioning the reporting sites motives. Even calling it deeplinking is a very different thing than what happened. (Perhaps the wording is used differently in th UK?)

I'm all for deeplinking (linking to inner pages) I encourage it on all my sites. Hotlinking (linking to media files) however is theft, plain and simple.

vincevincevince




msg:3231117
 6:50 am on Jan 25, 2007 (gmt 0)

So far as I know hotlinking only refers to linking to media files in such a way that they display on the hotlinker's page. If the media used <embed> tags or was in image in a <img> tag then yes, it would be hotlinking.

Deep linking is linking to a URL which, in general, you obtain by navigating deep into a site (i.e. not the URL for the homepage). The URL for the movie stream seems to fit that criteria - you would have to navigate deep into the site to find it.

axgrindr




msg:3231129
 7:18 am on Jan 25, 2007 (gmt 0)

A hotlink is a direct link to an image or media file on someone else's web server ('only when using an embed tag' isn't part of the definition).

This is illegal in itself because of the bandwidth theft involved and is exactly what Davis has done.

vincevincevince, do you not think it would have been more appropriate for Davis to link to the other site's web page instead of directly to their media file?

vincevincevince




msg:3231157
 8:26 am on Jan 25, 2007 (gmt 0)

vincevincevince, do you not think it would have been more appropriate for Davis to link to the other site's web page instead of directly to their media file?

No I don't. Giving someone a link is never wrong. All that was copied was a URL so the idea that there could be something wrong with that is absolutely crazy. There's a case to be made if you force that link to open in your website, but that's not what happened here.

axgrindr




msg:3231171
 8:36 am on Jan 25, 2007 (gmt 0)

Linking directly to a media file without permission is not only always wrong it is also illegal.

[edited by: axgrindr at 8:45 am (utc) on Jan. 25, 2007]

vincevincevince




msg:3231178
 8:44 am on Jan 25, 2007 (gmt 0)

axgrindr - can you tell me which law makes it illegal? So far as I know the only way in which anything related to this has been upheld in the past was because the media file was shown within the website, hence passing it off as owned or licensed by that website.

A media file on the internet is placed there for access by the public. There is no law to say that the public must reach that file by a specific route of clicks. In the same way, there is no law to say that the public may not be provided a bookmark or shortcut directly to what they are looking for.

Marcia




msg:3231183
 8:54 am on Jan 25, 2007 (gmt 0)

>>because the media file was shown within the website, hence passing it off as owned or licensed by that website.

That most certainly is illegal, and it most certainly is far from fair use as it can get. It's not only fraud, representing something as their own creation and property, it's a violation of intellectual property law. Same exact thing as motion pictures or recordings, for which there needs to be permission to perform them and there need to be royalties paid. The technology used may be different, but it's no different from Universal suing for their films being shown on MyTube. Or lawsuits for copyrighted celebrity photos being shown on fan sites being displayed by hotlinking or otherwise.

No one has the legal right to "play" a movie or streaming video or any other media creation on their own site unless it belongs to them.

axgrindr




msg:3231188
 8:58 am on Jan 25, 2007 (gmt 0)


The law may not on the books but linking directly to the audio files on my server from your site for instance takes money directly out of my pocket.

from wikipedia:
"Stealing bandwidth may cost the site owner money and/or bandwidth and space. This term refers to the unauthorized use of someone else's bandwidth."

It is widely accepted that hotlinking and bandwidth theft are a very bad thing for a webmaster to do.

Quadrille




msg:3231256
 10:57 am on Jan 25, 2007 (gmt 0)

VVV - it was not just linking.

Focus on the difference between DEEPlinking (Which is fine), and HOTlinking, whichat a minimum steals bandwidth, probably 'passes off', and may fraudulently gain advertising income around the promotion, that otherwise would have gone to the source.

Why do you think he did it? As a favor? Or to make money out of the other guy's product?

HINT: would he have allowed it to go to court if it was a favor?

It still comes back to my question: "Is it really so difficult to see the difference between creating something new and unique, and simply taking someone else's creation?"

And the law can usually see the difference, when asked.

balam




msg:3231279
 11:44 am on Jan 25, 2007 (gmt 0)

> No one has the legal right to "play" a movie or streaming video or any other media creation on their own site unless it belongs to them.

Marcia have you done any research on this story? If you have, then you are quite aware that the streaming audio NEVER appeared on the website in question. While I agree with your statement above, that is NOT the case here.

axgrindr...

> The law may not on the books but [...]

But - nothing! If there is no law in "the books," then the act CANNOT be illegal. Unethical, bad etiquette, immoral, rude, whatever. But not illegal.

Those that are willing to dig a bit deeper into this story may have come across this post on the Google Copyright Blog: Deeplinking in the Heart of Texas, Judge Says No [googlecopyright.blogspot.com]. Allow me to quote a paragraph...

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!

Emphasis is mine!

What occurred in the above post and on the SupercrossLive site is this: A link to a WMA (Windows Media Audio) file hosted by Akamai was posted.

That's it.

Nothing more.

And not a nibble of SFX's bandwidth is/was used.

If you clicked on the links on the ScL site, or the link in the cited blog post, then Windows Media Player would be invoked and the file is streamed directly from Akamai to the end user. The file doesn't go through SFX's server, it doesn't go through Blogspot's server, and it certainly doesn't go through ScL's server.

So, claims that SFX's bandwidth was stolen are completely wrong. The SFX site has nothing but a link to a file hosted by Akamai, just like the blog post & the ScL site. Ah, I hear the next argument - "Akamai's bandwidth was stolen!" If that's the case, then why isn't Akamai part of this case? (A rhetorical question, as I don't expect any of us to be able to answer it.)

The question I will ask, and expect some answers to, is this: Is posting a link hot-linking?

Quadrille




msg:3231412
 2:04 pm on Jan 25, 2007 (gmt 0)

The law may not on the books but linking directly to the audio files on my server from your site for instance takes money directly out of my pocket.

Perhaps you'll understand if that was rephrased?

"A specific law may not on the books, but linking directly to the audio files on my server from your site for instance takes money directly out of my pocket. And there are plenty of existing laws that will cover that theft"

There is bandwidth theft - however small, however hard to prove, however complicated to decide whose server and whose 'rights'

There is lost income as visitors see the thief's ads, not the licensed user of the file. Hard to make a criminal case, but every penny "earned" by the thief could be taken back in a civil case, no contest.

Plus the matter of copyright. One site used the file legitimately; either it was his own, or he had permission to access it. The other site was a parasite. period.

Sorry for the simple language - but I see no need to make thieves feel comfortable, until they are safely locked up. :)

BTW, if you really do not know the difference between linking and hotlinking, then all further discussion is moot.

[edited by: Quadrille at 2:07 pm (utc) on Jan. 25, 2007]

Lee_Roberts




msg:3231429
 2:21 pm on Jan 25, 2007 (gmt 0)

Perhaps a study of the case law is required to understand why Deep Linking was used versus Hot Linking. Also, to understand that the judge was correct in his opinion whether he was smart enough to examine previous case law or not.

Quoted from: [library.findlaw.com ]

"Two recent cases illustrate the potential issues associated with linking and framing. In TicketMaster v. Microsoft (C.D. Cal. 1997), Microsoft was sued by TicketMaster for linking to pages within TicketMaster's web site without TicketMaster's authority. While one would think that TicketMaster would have been more than happy to have Microsoft direct business to TicketMaster's web site, TicketMaster argued, among other things, that Microsoft did not link users to TicketMaster's main home page, but rather "deep linked" directly to content pages within TicketMaster's web site. The second case, The Washington Post Company, et al v. TotalNews, Inc., et al (S.D. N.Y. 1997), involved framing by TotalNews of the Washington Post's web site. TotalNews was in the business of supplying news content from multiple sources which were displayed within a frame on TotalNews' web site."

At any rate, it has been established since 1997 that the act of linking to another Web site's content without prior consent is a violation of copyright laws.

The case of linking to a media file on another Web site is illegal because of the following reasons:

1. It presents the idea that the media file is the property of the Web site where the link is found.
2. It removes or hides the true ownership and intellectual property rights of the true owner.
3. Removes the opportunity for the true owner to receive personal or financial gain from their works.

Hot linking is actually defined as including a file within a Web page. If you have an image on your Web site and I link to that image within my Web page, I am hot linking because my Web page is calling your image directly into it.

Deep linking is defined as linking to a file on another Web site which requires clicking a link within a Web page before the linked file can be used.

I hope this helps everyone.

vincevincevince




msg:3231451
 2:34 pm on Jan 25, 2007 (gmt 0)

Hot linking is actually defined as including a file within a Web page. If you have an image on your Web site and I link to that image within my Web page, I am hot linking because my Web page is calling your image directly into it.

Deep linking is defined as linking to a file on another Web site which requires clicking a link within a Web page before the linked file can be used.

I'd just like to add that under that above definition what happened in this case was clearly deep linking and not hot linking.

What those who think this act was illegal are missing is that all that was posted was a clickable link to a stream which opens in your default media player.

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.

In these days of multimedia internet offerings and the need for accessiblity a URL can easily point at audio, video or flash. These are all the equivalent of web-pages but in a different format. They should be viewed as no different to any other page on the site.

Quadrille




msg:3231486
 2:55 pm on Jan 25, 2007 (gmt 0)

I'd just like to add that under that above definition what happened in this case was clearly deep linking and not hot linking.

What those who think this act was illegal are missing is that all that was posted was a clickable link to a stream which opens in your default media player.

IE a hotlink. Just like an ebay seller linking to another folks' images.

You clicked the link, it brought the stream to the visitor; a 'link' would have taken the visitor to the site.

However you cut it and rephrase it, the thief site was getting the benefit of someone else's content; earning cash and kudos for linking to someone else's property. There's laws against that - the judge said so :)

Here Come The Judge!

[edited by: Quadrille at 2:56 pm (utc) on Jan. 25, 2007]

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