Link risk: Free Web 2.0 is not a done deal

Link risk: Free Web 2.0 is not a done deal

Summary: 'Content must be paid for' business logic versus 'content must be free for the taking' Web 2.0 logic.

TOPICS: Google

UPDATE: Rex Hammock wonders "Maybe I’m just missing something," in not getting that billionaire Sam Zell laments that newspapers are "giving it away," to Google, in particular.


Maybe he is. Perhaps all those cited by Hammock as backup--Jason Calacanis, Dave Winer, Doc Searls, Matthew Ingram, Collin Crawford--also maybe are just missing something. Here are some of the insightful contributions to the "conversation" cited by Hammock re "deftly ripping into" Zell:


Winer: "what he literally said makes no sense"


Ingram: "he's a complete ignoramous"


Crawford "bonus": "they will be joining the dodo"


Contrary to popular, blogosphere and Googley belief, linking is not a done deal on the Web, as a Federal judge in Texas reaffirmed just months ago. READ ON!


BTW, Original title of my post from December: "U.S. Capitalism vs. Web Democracy"


DECEMBER 22, 2006: In “Google AdSense + Google ‘fair-use’ = bloggers ripped-off” I put forth: “When money is at stake, imitation is generally the most insincere form of flattery.”


When money is at stake, a federal judge in Texas has deemed that it is unlawful to provide a hyperlink to a Webcast if the copyright owner objects to it, CNET reports:

The audio Webcasts are copyrighted by SFX Motor Sports, a Texas company that is one of the largest producers of "Supercross" motorcycle racing events. SFX sued Davis in February, noting that fans who go to its own Web site will see the names and logos of sponsors including wireless company Amp'd Mobile. (Anyone who clicked on the link from Davis' site, however, would not see the logos of companies that paid to be sponsors.)

In granting a preliminary injunction against Davis, U.S. District Judge Sam Lindsay ruled last week that "the link Davis provides on his Web site is not a 'fair use' of copyright material" and ordered him to cease linking directly to streaming audio files owned by SFX.

Lindsay applied “content must be paid for” business logic, not “content must be free for the taking” Web 2.0 logic, in determining that third-party hyperlinking enabled by Internet technology does not override original content owners’ primordial financial interests:

Lindsay ruled that: "SFX will likely suffer immediate and irreparable harm when the new racing season begins in mid-December 2006 if Davis is not enjoined from posting links to the live racing Webcasts. The court agrees that if Davis is not enjoined from providing unauthorized Webcast links on his Web site, SFX will lose its ability to sell sponsorships or advertisement on the basis that it is the exclusive source of the Webcasts, and such loss will cause irreparable harm."

U.S. capitalism sometimes trumps Web “democracy.”

SEE: Why Google WILL pay for content and YouTube: Why Google is running scared

ALSO: Google blurs line between advertising and content, again and Google clients ‘frustrated’ by unprofitable AdWords buys and Google (will be) a monopoly and Does Google SEO success ’suck’?

Topic: Google

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  • It's a no-brainer

    Of course the court is right. Why should any 2.0 jerk be allowed to hook into the content of somebody else when they aren't paying the costs to provide the content? The sponsors aren't getting their sponsoring value if their logos are being bypassed. Our community is based on money - you can't just arbitrarily take it out of the equation.
    • Better this than DRM

      The only alternative would be for the judge to say, "I know that thousands of your customer's want the ability to watch Motorcross on-line, but until you can implement the technology that prevents people from linking to your content (read, DRM) I guess you're just out of luck."
  • Why is this even a story?

    As I read this, I questioned why someone even bothered making this a story. The Judge's ruling is logical and fair, I agree with the previous poster, this is "the way it should be."
  • Not Web Democracy

    Why is theft considered "Web Democracy"? It's is theft.
    • Agreed...see my other post!!

      This is socialism, not democracy. Socialism and communism are related forms of economic distributionism...democracy is about everyone having a say in decision-making. Democracy does not generally espouse a lack of economic property rights.
  • Wrong! It's Capitalism vs. Socialism, really

    Democracy? The linking to and free use of material on the web would amount to socialism, not democracy...where the rest of society gets the benefits of others' work. Democracy is about everyone having a voice in decision-making...which is entirely different from an economic model of sharing content. Let's get the metaphor right, please.
  • U.S. capitalism??? Say what?

    As if capitalism exists only in the US???
  • Poor Choice of Title

    This is just one judge -- not all of U.S. capitalism. For all I know, "U.S. capitalism" backs deep linking.
  • Why "1) U.S. capitalism vs. 2) Web democracy"?

    1) U.S. capitalism: A U.S. federal judge ruled on the financial interests of a U.S. copyright owner,

    2) Web democracy: "Democracy on the web works," as per Google, "Google's technology uses the collective intelligence of the web to determine a page's importance?evaluates all of the sites linking to a web page and assigns them a value, based in part on the sites linking to them."
    • IMHO, Very Narrow View of Capitalism

      Just because some judge makes a ruling doesn't make it "U.S. Capitalism".

      We have judicial rulings all the time.

      False choice -- big time.
  • And Now The Rest Of The Story

    The defendant in this case represented himself Pro Se (Without a lawyer). Not only do judges not particularly like pro se litigants but this bright chap filed court documents and made speeches in court like this....

    [i]Here are a few examples from Davis's Mot. to Quash: "Defendants DO NOT ACCEPT these "Supercross LIVE!" copyright labeling by Plaintiff." "Plaintiffs have come roaring into this federal court with the overwhelming force and ethics, or lack thereof, of Ghengis Khan." "Plaintiff has the gaul [sic] to ask the court to affirm its spoils with a partial summary of judgment and preliminary judgment.

    What judges hate more than pro se litigants is hyperbole in the court room and nonsense like this. In a court of law you argue in front of the judge by citing precedent in case law and why the statute should be applied in support of your argument. You also have to follow the rules of the court.

    This guy did neither!!!!

    The Ironic part about this is there is a precedent from that very court which allows deep linking.

    In the case of Davis the EFF would have most likely helped him out with his case. If not several lawyers may have taken it Pro Bono- but this joker decides to do it on his own.

    As he didn't provide a coherent legal reason why the injunction should go forward and the plaintiff could demonstrate possible harm the judge had no option but to grant the injunction.

    In addition you cite this as a reason why search engines should not be allowed to index and link the web. This case is nothing like that!!!

    In this case the linking involved watching the video without leaving Davis's website. In the case of a search engine the link takes you to the linked page. A big difference.

    In addition Davis copied images, logos, trademarks, and well pretty much everything from the Supercross live site.

    Not to mention there are far more precedents in case-law which allow deep linking.

    Also a "Journalist" or even a half-way decent blogger would have spent 5-10 minutes researching that instead of jumping to the conclusion that the judge ruled that way merely because money was involved.
    Edward Meyers
    • Moral of the story

      is that there ought not be definitive conclusions drawn...hence "link risk."

      Referencing divergent precedent serves to reinforce "link risk," it does not mitigate it, if case circumstances are deemed identical or not.

      Money was indeed a "deep" concern of the ruling judge, the ability for one to make money off of one's own property that is.

      Disparaging pro se satus is a convenient scape goat, another thing judges "hate," as well as believing the absolute numbers of case law precedents researched and/or cited and the specific amount of time spent on doing such is the sure way to a judge's favorable ruling.
      • In this case it is not a scapegoat

        Davis presented no coherent defense in which the judge could legally not issue the injunction. It wasn't just that he represented himself pro se- never a good idea if it can be helped, but he didn't even approach a serious defense and invoked fair use- which requires that you to admit that you copied a copyrightable work, the stream in this case. The fact that he referred to the plaintiff as Genghis Kahn and used hyperbole in his own filing is in large part why he lost. This most certainly should be mentioned.

        Part of his defense was [i]"A lie repeated five (5) times becomes the truth. Ten(10) times is the plaintiff's version of the truth of this complaint."[/i]. The defendant didn't cite any caselaw to build his case, even though there was the [url=]Ticketmaster precedent[/url] which is that web addresses in of themselves are not copyrightable.

        As far as a divergent precedents- which the court notes they didn't believe there was one... Let's look at what exactly Davis did do to get himself sued .

        To begin with he copied the Supercross Live Trademark at the top left corner of his site. Then he copied the track images from their site, he also copied the main event lap times, and finally he provided a means to directly access the broadcast without leaving his website. The courts have, and continue, to differentiate between a traditional hyperlink, what all search engines traditionally have offered (and continue to offer), versus framing and inline linking versus copying and retransmitting the material (Mirroring). Then again the judge was very ambiguous in his ruling between linking and copying then providing a copy of said live stream (Mirroring the stream).

        They are all different and the courts treat them all, rightly so, as different.

        from the [url=]ruling[/url] itself.

        [i]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. [/i]

        A hyperlink is not copying. As Davis invoked Fair Use as a defense the conclusion the judge makes is that he copied the webcast and rebroadcasted it. This is very different from a hyperlink which only points to another page.

        [i]SFX also states, and Davis does not appear to deny, that Davis's website,, provided live audio webcasts of those shows. Davis's response to SFX's allegations are unclear, because he denies streaming, copying or re-broadcasting SFX's shows; however, Davis asserts that he has an "affirmative defense" to SFX's complaint because he provides "the same audio webcast link freely distributed by ClearChannel executives and thousands of individuals upon thousands of websites worldwide.".[/i]

        The judge apparently believes that the material was hosted on the same site as Davis's and he copied the webcasts. He draws this conclusion because Davis claims fair use, which requires admitting to copying a work, as his defense

        [i]Additionally, Davis asserts "fair use" as an affirmative defense.[/i]

        In the case of a hyperlink , a pointer to a web address, the address itself can not be copyrighted-That is the Ticketmaster precedent. Fair Use doesn't come into play unless something copyrightable was actually copied. When a defendant invokes Fair Use as an Affirmative defense to copyright infringement they actually admit to copying the work in question then bear the responsibility of successfully making the case that their copying of the work falls under fair use using the 4 factor test. As a web address is not copyrightable, the same as a phone number itself is not copyrightable, Fair Use shouldn't have come up...

        [i]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.[/i]

        The judge likens this case to the NFL case where one company captured (copied) and rebroadcasted the NFL games in Canada. This really shouldn't be any surprise because the defendant invoked fair use- which means he admitted to copying the webcast.

        The plaintiff claimed copyright and trademark infringement, the defendant offered no sound legal defense in regards to the infringement but rather spouted nonsense and called the plaintiff Genghis Kahn in addition to invoking Fair Use which requires you to admitt you copied the work in question, the judge has no other option but to grant the injunction. Even if money was no concern the outcome would have been the same.

        Finally this case will most likely be appealed.

        The true moral of the story- Don't make a fool of yourself in court. If you are going to represent yourself pro se at least research how the court system works and don't refer to the plaintiff as Genghis Kahn, unless the plaintiff of course is Genghis Kahn.
        Edward Meyers
  • RE: U.S. capitalism vs. Web democracy