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Deep Linking to Copyrighted Files is Not Illegal

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While browsing around the Internets this evening, I came across this site which very briefly addressed recent multinational judicial rulings on the legality of linking to someone else's copyrighted material. Note that this isn't about linking in general, though I'm not sure what it is you could link to that isn't copyrighted besides the random article in the public domain.

While the website appears to be extremely popular, it appears to be geared toward providing a large number of short technology tips and relatively lightweight information, substituting quality for quantity. Take for example the above linked article on linking to copyrighted files, where the title states unequivocally that "Directly Linking to Copyrighted Files On the Web Is Now Illegal - Weird but True". In reality this statement is not only weird, but false as well.

The conclusion made therein is simply not supported by the facts, so you really shouldn't be alarmed about what has happened -- at least not yet. The case we're talking about here comes from a Texas district where a website was linking directly to audio files copyrighted by SFX Motor Sports. The C|NET write up says that SFX sued because the direct linking was preventing their advertisements from being displayed along with their copyrighted content, depriving them of revenue.

This alone is actually a fair claim to make, though SFX picked the wrong law under which to sue. Not being a lawyer, I can't really say under which law this would apply, but I can say as a person with a longstanding interest in copyright law that their claim here simply doesn't apply. In order for a person or entity to be guilty of copyright infringement, a copy must have been made. In this case the defendant made no copies of SFX's content, nor did they enable users to make copies as is often the argument against file sharing programs. Users were directed to the files hosted on SFX's own website, where they themselves were still giving out the content freely.

The defendant apparently made the claim that what he was doing fell under the fair use clause, that is 17 U.S.C. 107, where a number of "fair use" exceptions are made for the general public to use other peoples work, so long as it doesn't negatively effect the author. Copying just a paragraph from a news story for instance is considered fair, and non-commercial use weighs heavily in favor of the average joe.

This defense was inappropriate for a number of reasons. First you have the defendant acting as his own counsel, which is ill advised in practically any legal matter, let alone something as unstable as intellectual property law. I suspect this may be why the "fair use" defense was raised in the first place, the defendant simply didn't know any better.

Second is the aforementioned inappropriateness of the defense. It should have been made apparent to the judge that the plaintiffs could not show through evidence that any infringement had occurred, because they would have been forced to submit evidence of illicit copying. Since no such copying occurred, the request for an injunction should have been dismissed right then and there.

Unfortunately the defendant got in over his head and has landed a number of people in a very sticky situation, but it's not so bad just yet. Not as bad as it could be soon, anyway.

No trial has been held, and nobody has been found guilty of breaking the law. What has happened is SFX filed for a preliminary injunction, which is essentially a plaintiff-written court order telling the defendant to stop doing something. If there is a perceived damage being caused to the plaintiff, these things can be ordered well in advance of the trial itself, which happens to be the case here.

For the time being, the order only effects the defendant, it does not preclude other people from linking to copyrighted files on the Internet. In fact, it doesn't even affect people who want to link directly to SFX's copyrighted files in particular, unless they want to try to get even more injunctions, anyway. Until a trial occurs, this is nothing more than the plaintiff and defendant lobbing bombs back and forth at each other from a distance, the real fireworks won't happen for some time presumably.

Beyond that issue and even if the defendant is eventually found guilty of infringement, the question of regional precedent comes into play. This skirmish is happening in a district court in Texas, which could mean at best the precedent will only apply to that specific district. At worst, it would only effect the entire state. It would have to be kicked up to an appeals court and upheld (still assuming guilt) to effect other states, and even then the federal appeals court system has its regional limitations. The case would have to be adjudicated all the way through the Supreme Court to set a nationwide precedent.

Trust me when I say that for the time being, it is still perfectly legal to link to damn near anything you want to in the United States. This case could end here with a settlement before ever reaching trial, or it could drag on through the court system for a decade before the final word has been written. Right now, this isn't anything worth getting worked up over, but keep your eye on the horizon, because this issue isn't likely to simmer in the background forever.

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The text of this article is Copyright © 2006,2007 Paul William Tenny. All rights reserved. This work is licensed under a Creative Commons Attribution-Share Alike 3.0 United States License. Attribution by: full name and original URL. Comments are copyrighted by their authors and are not subject to the Creative Commons license of the article itself.