A recent Texas court decision is the first in the country to deal with some of the copyright questions that surround live webcasts. Robert Davis runs a web site called supercrosslive.com at which he allegedly streamed audio webcasts of live supercross races that belonged to SFX Motor Sports. SFX sued him back in February, claiming trademark infringement for redistributing the webcasts and for using the company's logos and track maps without permission.

In its complaint, SFX was upset about "the unauthorized linking of Defendants' Internet locations with the Websites of Plaintiff, its sponsors and sanctioning body" and the "unauthorized copying, reproducing and distributing" of audio broadcasts. SFX says that this violated its copyright to the material and also made it more difficult to secure sponsors.

The case is a confusing one, because no one seems entirely clear on their technology. SFX is obviously not upset that Davis links to their web site; they want more traffic. Davis, who defended himself using language that the judge called "generally defiant and full of inappropriate hyperbole," claims that he has never copied or re-streamed SFX content. The judge, in his opinion, rules that Davis' "live webcasts links" violate SFX copyrights, but also says that Davis has "copied SFX's copyrighted webcasts without authorization." What's going on?

What appears to have happened is that Davis was directly linking from his pages to the SFX webcast rather than to the SFX webpage (see an example) that gave access to the webcast. This meant that SFX could not display or sell advertising on the page. But Davis appears to have been correct when he claimed that he did not copy or redistribute the material, making this case one about the practice of "deep linking" to copyrighted content.

Davis countersued and told the judge that SFX "have come roaring into this federal court with the overwhelming force and the ethics, or lack thereof, of Genghis Khan." The judge was not impressed. He ruled in favor of SFX, finding that Davis' linkage was not "fair use" and that it could cause irreparable harm to SFX by limiting the company's right "to sell sponsorships or advertisements on its own website as the 'exclusive source' of the webcasts."

It's not at all clear why the lawsuit was even necessary. One of the reasons that such cases are rare is that it's a trivial matter to control access to your own material. Redirection, whitelists, and blacklists could all have been used to make sure that access to the webcast was only granted from SFX's site, and would certainly have been cheaper to set up.

The court order allows Davis to continue running his website, and it looks like he would be allowed to link to the SFX web page in question, rather than the actual website. Instead, Davis' site has been shut down and now shows only a list of links to court documents.