Judge Rules Against Deep-Linking of Content

An anonymous reader writes "A Texas judge has ruled that, if a copyright owner objects to the linking of content from another web site, that link must be taken down. This case, which may have some far-reaching implications, centered around a motorcross website. The site, run by a Robert Davis, provided links directly to live feeds of 'Supercross' events streaming from the SFX Motor Sports site. The company filed suit, claiming that the direct links were denying it advertising revenue. The article cites previous cases, where sites were prohibited by judges from linking to files which violated copyright law (such as DVD decryption software). From the article: 'But in those lawsuits, the file that was the target of the hyperlink actually violated copyright law. What's unusual in the SFX case is that a copyright holder is trying to prohibit a direct link to its own Web site. (There is no evidence that SFX tried technical countermeasures, such as referrer logging and blocking anyone coming from Davis' site.)'"

What is unusual in this case is...

The moron chose to defend himself and likened the other party to Ghengis Khan.

Cases are decided on the merits of the argument. If you're determined to enter a stupid argument, you're going to lose - the amount of money either side has or validity of the underlying concept doesn't matter at that point..

Re:I thought cases were decided on what the LAW is

If there's no law against him linking to content, then regardless of how stupidly he argued his case in court, he should still have won the lawsuit. The judge can't simply ignore the law!

A judge isn't paid to know every last law on the books. A judge is paid to know how to weigh up separate legal arguments as they are presented to them and conduct additional research if they deem it appropriate.

The content owner presented the argument, "This is my content. He is circumventing the means I have put in place to control access to it. The Digital Millenium Copyright Act says that any attempt to circumvent access control is against the law."

The idiot defended himself with, "But! But! He's Ghengis Khan!"

The judge didn't ignore any laws that were presented to him. He considered the arguments presented and sided with the coherent one.

Now, had the idiot argued that, "The DMCA applies to circumvention of encryption. This was not encrypted and so that argument is invalid. This guy put his content on the net and I linked to it via standard internet norms. That he wanted people to walk down only one path to his content, so he could profit better, doesn't change the fact that another commonly used path existed that he made no attempt to secure." he might have won. Had he hired a lawyer to put many years of training on how to skillfully craft that argument, he'd have been even more likely to have won.

The fact remains, the judge did exactly what judges are supposed to do - he weighed up the arguments as they were presented to him. That the idiot failed to present a cohesive argument means that, yes, he should have lost under the way the U.S. legal system works.

Now you can argue that judges should be required to be case law experts on any case they hear...

Think about that for a moment. Consider the breadth of case law out there. Consider how lawyers already specialize in specific areas because knowing every area, even if you just have a good grounding and do research in specific cases, is all but impossible. Do we want specialist judges? It's a great ideal. But now consider the cost to every county that have to provide separate divorce judges, patent law judges, business law judges, etc. Now a county needs twenty or thirty judicial variants to support what you're asking for.

How do they pay for this? Well, so far, court costs get passed on to the loser. Slashdot readers regularly bitch that the massive cost of losing already makes a legal defense impossible for the common man to risk - hence things like the RIAA settlements. Do you really want to make this situation even worse?

Yes, in an ideal world, everything would be perfect: Judges would be experts on what they heard and the pure, fabulous truth would be all that mattered - and it would somehow all be for free. Back in the real world, a tradeoff has to be made. To ensure realistic access to justice, that balance point has been chosen as: Judges aren't expected to be case law experts, they're expected to weigh up arguments well. You can hire a lawyer to ensure your argument is well presented.

It's not perfect but it's the best system anyone's come up with so far. Under this system, yes, the guy deserved to lose.

Re:What is unusual in this case is...

Beside that, the guy wasn't "deep linking" to a page. He was linking directly to the audio file, so that the user was never actually sent to the site. Their media player came up and played the file and the originating site never got the page view or access to the user.

I've always seen "deep linking" as linking to an HTML page and getting a lot of bogus gateway pages, search pages, etc. out of the way. Some sites object to that because when you do that instead of linking to their home page, they only get one pageview instead of the 3 or 4 it might take for the user to reach that content. I think we all agree that kind of objection is bogus.

When you source a non-html file off of someone else's server without permission, either by direct linking or embedding it in your own page, it's called leeching.

When Fuddruckers was leeching a flash game off a developer's site [slashdot.org] they were broadly condemned, and he was cheered for serving up brutal photos of cattle mutilation to children who were unlucky enough to go to the Fuddruckers page for the game.

Now I can understand those users who think that the site should have tried this method for reaming the leecher site instead of going the legal route. But no method of content protection is foolproof, and that's not saying it's bad because it might not prevent all leeching, but because you can have false positives. So besides the extra effort of erecting porous walls to prevent content theft, you have the customer service issues with all your legitimate users who generate false positives.

If a content protection scheme would generate 1% false positives, but I had 10,000 uniques a day, then I've got to deal with 20 extra complaints a day (where I might be able to win the customer back) and 80 lost customers who just got offended or frustrated and bailed. In the meantime, the bastard who caused me all this difficulty merely loses the ability to link to my content.

If I take him to court instead, then he has legal costs for defense, legal costs for any damages awarded, a court order preventing him from further leeching (and jail time if I catch him violating it), and I don't have to deal with the cost issues of 100 false positives a day.

- Greg

Wow.

Wow. They made the entire Internet illegal.

Re:

Wow. They made the entire Internet illegal.

No, they provided some recourse for someone who was appropriately annoyed that some other guy was enriching the appearance of his site's by 'providing' material to which he doesn't hold a copyright, for which h

Re:Wow.

Yes, but you miss the larger impact of the ruling, which essentially defines every link on the internet as illegal, so long as the owner of the target site cares to say "boo". And if you take it one step further, any site linking to any site that contains copyrighted material would also be illegal, covering all the rest of the content on the internet, that may or may not directly host copyrighted content or have bothered to copyright their site design.

Re:

I think the key concept you are missing is the linking directly to copyrighted material that the owner does not want others to link to. A copyright holder can decide who and how their material is distributed (as it should be). What is this rules does is

Re:Wow.

You miss the point that it isn't the government's job to secure profits for any business or individual. If the owner of the content didn't want it seen by the public, they should have made it available only to private users, and not via a public URL. This situation is 100% analogous to a painter displaying, in full public view, a prized painting, then demanding $10 to view it, and crying to the government when no one pays your $10 fee to look at the painting. If the artist wanted the painting to be inaccessable, it is HIS JOB, not the government's, to make sure it is not publicly accessible.

Re:Wow.

Except if you took a high resoluiton picture you'd actually have a copy, distinct from the original. A better analogy might be an artist puts their painting in a gallery window, and you open a shop across the street and put in a telescope so people can see the orignal painting, People still have to go *somewhere* to see the painting, and you *haven't* made an unauthorized copy, you just removed the original context (the gallery window) and replaced it with your own shop.

Certainly it's not a nice thing to do, and I'd be angry if someone did it to me, but wouldn't you prefer that the gallery just to put up curtains (or check the referer header)? Do you really want the courts saying it's illegal to use a telescope across the street from any art gallery?

Chicago Cubs

A better analogy might be an artist puts their painting in a gallery window, and you open a shop across the street and put in a telescope so people can see the orignal painting

This reminds me of a case in 2002, in which the Chicago Cubs sued businesses [metafilter.com] t

Analogies are great; everyone should have one

Since we're playing the analogy game, let's go for mine:

Let's say the painter has constructed a maze, that anyone can enter for free. To get to the place to view the painting, one must follow a number of signs that provide directions through the maze. Those signs also have advertising placed on them, such that people viewing those signs might see the ads. Now one person takes the time to walk through the maze and writes down the sequence of turns to make it to the picture; left, straight, right, right, straight. This person then makes copies of those instructions and stands outside the entrance to the maze and offers those instructions to others, effectively allowing them to not look at the maze's directions or ads.

That's a deep link; it gets you to a specific point without having to navigate the intermediate links yourself. If those intermediate points contain ads, then you might not see them. The final links on the plantiff's website seem to be direct links to the audio files, much as the defendant has been accussed of publishing. In the end, the act of listening is the same; if this was a matter of embedded audio with ads on the page, I agree the photograph analogy would be a better fit, since it would be changing the context of presentation of the copyrighted work.

Re:Wow.

It is still the domain of the content owner, not the governments, to ensure that access to content is restricted to authorized users (i.e., those that view your ad). Otherwise, you get into precisely the situation this has caused, i.e., the government takes the role of securing the profit of the content provider. If the content provider wants every one of its users to view an ad, it is their responsibility, not the government's, that third parties are not able to view their (PUBLIC! so it cannot be "theft" as some others here are saying) content without seeing ads.

Re:Wow

One can argue that the patent and copyright systems are all about the government securing profit for businesses and individuals.

There are plenty of non-profit people and organizations that still make use of their copyrights. Not least so that other unscrupulous people can't make money off of their volunteered time, etc. Everyone has those rights to their own work, whether they're personally choosing to make money or not.

Re:Wow.

A copyright holder can decide who and how their material is distributed (as it should be). What is this rules does is reverse the rule of thumb of "if you put it on the internet, you are publishing it for anyone to see, unless you protect access to it". Now, instead of having to protect the content through technical measures, they can use lawyers instead.

The problem with this line of thinking is that content isn't "up" on the web for anyone to "see". The server is actively responding to requests for that content by serving it up. Sending a 403 when you don't want to distribute your content isn't actively blocking access -- it's merely not distributing it.

If you configure a server to your distribute content to anyone in the world who asks for it, that's exactly what you're going to get. You don't solve this problem with lawsuits. You solve with with a fucking text editor and a couple of brain cells.

Re:Wow.

Yes, but you miss the larger impact of the ruling, which essentially defines every link on the internet as illegal, so long as the owner of the target site cares to say "boo".

They didn't make anything illegal. This was a civil suit, where one guy was, despite being asked not to, leveraging someone else's material and bandwidth to fatten up his website with owning the content or doing the work or paying the bills. The guy who sued and won had to take an action for this to be stopped by a court, just like any copyright holder would have to in the future... but for now there's a precedent that says (so that everyone can get out of court quicker and spend less on lawyers) "that's some BS, piggybacking on that guy's material and bandwidth, and everyone knows it, so stop now and save us all the same grief in yet another case." Infringing on someone's copyright has always been a no-no. And as usual, it's up to the copyright holder to tell someone to knock it off. This isn't any different. The leech should have just quit while he was ahead, but he's obviously an idiot.

Re:

"Infringing on someone's copyright has always been a no-no. And as usual, it's up to the copyright holder to tell someone to knock it off. This isn't any different. The leech should have just quit while he was ahead, but he's obviously an idiot."

It certain

Re:Wow.

The guy who sued and won had to take an action for this to be stopped by a court, just like any copyright holder would have to in the future...

If you don't want to distribute content to someone, you configure your web server to deny them access to the resource. If you're running a server that's handing out 200 OK in response to requests for content, your server is doing exactly what it's configured to do. If you don't want to? Well, you'd better start handing out some damned 403 Forbiddens instead.

Basically, this judge has given webmasters grounds to sue people in lieu of learning how to do their damned jobs properly.

Re:Wow.

No, this isn't what the Internet was designed to do, which is provide links to other information sources. It's still a little vague in The FA - which is still clearer than the summary - but what the case is here is that the defendant was effectively embedding the streams into his own page, complete with his own advertising. That's a no-no. What would be perfectly legitimate would have been a link to the plaintiff's page with the video streams. That's the appropriate thing to do. Notice that embedded YouTube or Google Video content (among many others) is both branded and provides a link to the video's page at the hosting site; they're set up that way because they explicitly allow embedding. In this case the content was just plain hijacked (to misapply another concept to copyright law). The plaintiff had contacted the defendant prior to bringing suit.

Embedding others' content = bad
Linking to others' content = good

Re:Wow.

I think you mean: "So Time Magazine should stop putting its magazines on the shelf because otherwise they can't stop you from linking to a Wikipedia article about that issue which has the cover on it."

Re:Wow.

No, actually, they pretty much broke the internet. There are well-established ways of preventing linking from outside pages (using cookies, checking referrer: tags, etc.).

A link isn't a copy of the information it links to. A link is instructions for where to find someone else's server that is willing to give you the information. Outlawing links is like outlawing giving directions.

If someone is linking to your site from outside and that annoys you, the solution isn't to take that person to court -- it's to stop serving data to people coming from outside your site. That's 90% of what the referrer: tag is for.

Re:

A poor defense coupled with an idiot judge who doesn't do his own homework and a moron plaintiff who can't manage their website .... Talk about rolling "1" on a 1d20 3 times in a row... Internet broken, film at 11 - o wait, never mind we can't link to th

The Internet is fine

No, actually, they pretty much broke the internet. There are well-established ways of preventing linking from outside pages (using cookies, checking referrer: tags, etc.).

No, you are over-reacting and ignoring numerous prior precedents. The practice is

Re:

Deep link all you want, this decision doesn't change anything. What it DOES change is that now I get to ask you not to, and you'll be fined if you don't comply. It's basically "don't be a jerk" codified into law. I fail to see the problem.

Ok, let me try th

Re:

A link isn't a copy of the information it links to. A link is instructions for where to find someone else's server that is willing to give you the information. Outlawing links is like outlawing giving directions.

No, it's not quite that simple. Things l

More nanny state BS

The government isn't kept around to guarantee that businesses will make a profit. If these sites want to protect their ad click throughs then they can use techniques like unique per-user URLs or validating that the Referrer field in the HTTP request came from within their site.

Re:

The government isn't kept around to guarantee that businesses will make a profit.

It isn't?

No Big Deal: Wait For The Appeal

This isn't really a big deal or very surprising. Most judges aren't too familiar with the internet and technology and at the non-appealete level where they are dealing with a big well funded company who is likely suing someone who hasn't put much money in

Ridiculous

This has nothing to do with copyright and everything to do with trying to make more money off ads. The judge should have told the greedy buggers to take care of it on their end if they wanted the cash. In fact, they could have engineered it so that the generated *extra* revenue from those links but sadly they're complete idiots. What bothers me is stupid decisions like this are then regarded as "precedent" when they should actually be regarded as 100% BS.

A short poem:

Deep link from me
And it is goatse you will see

The end.

Torn here

I'm a bit torn here, for while I think that lawsuits over this issue are a bit over the top, I do have some sympathy for SFX. I fight leeches and deep linkers from Myspace all the time. They will deep link to audio files on my site, sometimes 10 clips at a

Re:

And bringing a lawsuit (against one individual) is cheaper than turning on referrer logging (which solves the problem in perpetuity for all leeches)? What colour is the sky on your planet?

Re:

Sort of like if your neigbhor keeps plugging his 2kw Christmas display (off of which he makes money!) into your house's exterior outlet, and no matter how many times you ask him to stop, he keeps doing it, and so you have to buy locks, build fences, and e

Re:

Your logic is heavily flawed. It would be much more like this situation if the guy was embedding their videos on his page. However, he was linking to them. That would be like you putting up a Christmas decoration, and your neighbor putting up a sign, sayin

Re:

An analogy is a tool to present an idea in a more understandable and universal light. It is, IMHO, unfortunate when an analogy presents something incorrectly, as it gives people the wrong idea about the issue.

Now that I think about it, TFA actually never

Texas?

I'm no lawyer, so someone help me out here.
This case is in Texas, therefore:
*This, at MOST, only applies to websites in Texas
*This may or may not set a precedent for other websites in other states
*Depending on case-specific issues, this may not set any

Re:

Copyright is not supposed to protect "your ability to generate ad revenue".

Um, that is EXACTLY what copyright is. Copyright gives you the exclusive right to decide how your "information" is used, whether it is a book, a painting or a website. In exchange

Re:

If not, then wtf do you think copyright is FOR?

The basis for things like copyright, as explicitly stated in the Constitution, is "to promote the progress of science and the useful arts." As such, copyright must be designed to do that. If you disagree, you

Re:

If not, then wtf do you think copyright is FOR?

Copyrights, like patents, are supposed to provide motivation to create, by giving limited protection of the rights for commercial exploitation.

HTH. HAND.

this changes things a bit

In some sense this provides for an absurd definition of the term "public internet". I mean linking is the same as telling someone that something exists. I wonder if I met someone at a party and I said, hey you should check out this link and I just "told" them about the URL, would I be violating the law if the URL's owner objected? What's the difference in speech between telling someone at a party and posting the same info on my blog?

Re:this changes things a bit

As a general principle, a prohibition on deep linking against the wishes of the linkee is unacceptable because it breaks the net and violates important aspects of free speech. For example, if you want to criticize something that I have posted but you can only link to my homepage, not to the specific post, your ability to criticize is significantly impaired. As far as I can see, there are only three ways in which a deep linkee is hurt: (a) he or she loses ad revenue. Too bad. The law isn't meant to support a specific business model. (b) he or she is not able to ensure that you read other material first. In some cases the motivation for this is good, but it isn't something you can enforce anymore than you can make someone read the introduction to your book before reading chapter 1. At best you can include on deep pages links to higher pages with an explanation as to why people should go there. (c) the linkee ends up paying for the bandwidth consumed by people downloading audio and video.

This last is a legitimate issue. The solution, however, is either to improve the technology to the point that the costs are negligible or to find a way of charging the downloader for bandwidth costs.

I can't believe it...

If you don't want your content to be linked to, don't make it accessible through a URL!

Re:I can't believe it...

How was the guy "steal"ing it? He didn't copy it on his own server. He left it on the plaintiff's server and posted a link to it.

I guess CmdrTaco should get the death penalty for all those links to copyrighted content he posts on this site.

it's their own dang fault...

...if they don't like it, they should just stop it. By tighting the rules about the referrer header, you can make sure that people browsing your site do so in the exact way you want.

Just look at the more savvy porn sites... they've started using referrers to make sure the images is being loaded from their site, but the more trickier ones are actually making sure that the image you want to look at was first loaded by the detail page that it was meant to be served from. It's made directory browsing terribly hard lately... :)


But either way, these morons would rather throw money at lawyers, and making people shell over money and such things, rather than tightening the technology of their own house. They define the rules, but with all those front doors openly accessible, they don't like it when people use them.

Many shops have doors out in the back alley... if you don't want people to use it, lock it, stupid!

Where Does It End?

So, now linking to a publicly-accessible file on a web server is a copyright infringement? What if I simply publish the URL on my site but without the hyperlink? What if I publish the URL of an "unlinkable" file in the newspaper? How can telling people the LOCATION of information infringe on the rights of the copyright holder?

Here's a little clue for said judge

IF someone includes a link in their writing to what is supposed to be a specific item of interest, but cannot because of rulings such as this one, they're forced to leave a link to the home page of the web site instead. Does anyone honestly think users are going to waste their valuable time trying to locate the item of interest being referenced by the writer? When I'm confronted with these kinds of links, the very next click is on the "close" button.

Haven't RTFA

I just want to combat some misinformation I've been seeing.

Linking, at its most basic level, is not stealing. It's not even copyright infringement. A link is merely a reference to an existing resource. Nothing more. By linking to the PDF of your book on your website, I'm no more infringing your copyright than if I told someone where to find a free copy (perhaps in the free box of a yard sale.)

A lot of individuals seem to think that anything that prevents them from making money from their work is inherently a violation of their copyright, but I'm sorry. The internet just doesn't work that way. If you want to protect your work, put it behind some kind of basic barrier (a login, a CAPCHA, something.) Then you can sue deep linkers under the DMCA for circumventing your copyright protection mechanism. A blanket ruling stating that any webmaster can object to and remove a link to any "deep" (read: non-home) page on his site is just a bad idea. Many website TOS's already (unenforceably) forbid deep linking. If this ruling spreads, any website that generates ad revenue, or relies on branding, will start adopting similar language. And since that constitutes about 85%* of the useful web, this is unquestionably bad.

Some people can't seem to understand the role deep linking plays in the useful web. Almost any informational article or resource of any length references very specific pages on other websites. This type of thinking will eventually require any web developer to do careful research on any website he wants to link to, checking their TOS policies to find out if deep linking is illegal.

Now, one slightly more rational view seems to be that one can safely deep link, and need only remove links when a content owner specifically objects. Other more disturbing views insinuate that a web developer should "just send an e-mail" before he establishes a deep link. This would turn every website article into an arduous process of research and documentation, cataloging permission for every link in every page.

Eventually, this will lead to the web being broken down into mostly web sites linking to the homepages of other websites. References in articles will become like this [domain.com] (Click on Articles, click in the search box and type 'Pandas'. Go to page 3, click the 3rd article from the top ('Panda Lifecycle'.) The search results may be different, so you might have to hunt around.)

If you disagree, you obviously don't understand the nature of the web. To those of you who argue that "everyone should just be reasonable", nobody is ever reasonable when it comes to money. And believe me, the web is now very much about money.

Now, I'm not talking specifically about this ruling, which may or may not embody all of the above ideas. I'm speaking more to the concept of conflating deep linking with theft, and many of the ideas and beliefs which have been espoused in this thread. The bottom line, this is a technical problem that requires a (simple and inexpensive) technical solution. Attempting to involve the courts will only harm the useful web.

* Source: My Ass

The logical next step.

Using the logic accepted by the judge in this case, the next step would be a decision that referencing the actual page number of an article in a magazine or newspaper deprives the publication of the additional advertising revenue they could expect if the reader had to search for it in the issue.

Re:

are the proofreaders on Christmas break already?

Already? We're still waiting for them to return from the break they started taking in 1999.

Re:

"sights" would reference vision - "sites" references location.

Guess English is a little harder than you thought.

Gotcha back.

Re:Sit down kids and let me tell you a bed time st

This leaves the slashdot crowd so confused, I have to write a dumb post about squirrel movies to explain it.

Waaa! My business model is flawed. Please Mr. Judge, make him stop!

If they really want to be serious abo