The RIAA and the MPAA aren’t the only ones out there suing their fans for copyright infringement. Live Nation Motor Sports, Inc. (formerly known as SFX Motor Sports) has convinced a federal judge in Texas to enjoin fan-site owner Robert Davis from streaming live webcasts of racing events through his site supercrosslive.com.
It appears that Davis was simply running the live ClearChannel webcast of Supercross racing events through his own website. According to papers filed by the plaintiff, Davis was “transferring” the webcasts to his own website and thereby displaying or performing them in real time. It doesn’t look like there was any copying of the sound recording — instead, Davis was broadcasting or performing the “same audio web cast.”
The court granted the plaintiff’s motion for a preliminary injunction, finding that the plaintiff would likely succeed on its claim that defendant’s actions constituted copyright infringement.
In concluding that the “transfer” of the audio webcast to the supercross.com website was likely an infringement, the court cited to National Football League v. PrimeTime 24 Joint Venture, 211 F.3d 10 (2d Cir.2000) in which the Second Circuit upheld a permanent injunction against a defendant accused of providing unauthorized satellite transmissions of NFL games to viewers in Canada. In that case, the court held that the process of uplinking the NFL’s original signal to a satellite was an unauthorized public performance of the broadcast.
Perhaps the court would have come to a different conclusion on the question of whether the defendant’s “transfer” of the audio webcast was a public performance had it compared it instead to in-line linking. This concept was discussed earlier this year in Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D. Cal. 2006). In-line linking is the process where a web developer shows an image on his or her website by providing a path in the <img> tag to a file residing on another server.
In the Perfect 10 v. Google case, the court concluded that Google did not itself display or distribute images to which it in-line linked. [More] It applied the “server test” (as opposed to an “incorporation test”) to conclude that “the website on which content is stored and by which it is served directly to a user, not the website that in-line links to it, is the website that ‘displays’ the content.” It found that in aggregating images from other sites, the Google image search engine was not in the process of storing or serving content. “Rather, [users’] computers have engaged in a direct connection with third-party websites, which are themselves responsible for transferring content.”
Live Nation Motor Sports, Inc. v. Davis, (Slip Op.) 2006 WL 3616983 (N.D.Tex., December 11, 2006).