Compare and Contrast Copyright Linking rulings in mp3s4free and SFX

by Tamera H. Bennett In an earlier post I referenced the court ruling in Cooper v. Universal Music Australia Pty Ltd [2006] FCAFC 187 (Federal Court of Australia) regarding linking to MP3 files. Also, a recent post addresses the decision in SFX Motor Sports Inc v. Davis, Northern Dist. of Texas (Dallas) (CD 3:06-cv-00276) in which a U.S. Federal District Court granted a preliminary injunction against linking directly to streaming audio files.

In Cooper(mp3s4free), Stephen Cooper was the registered owner of the domain name ‘mp3s4free.net’ and the originator, owner and operator of the now disabled ‘MP3s4FREE’ website. Although that website did not contain any music files, it was structured to allow internet users ready access to music files of numerous popular sound recordings via hyperlinks. When an internet user clicked on a particular hyperlink, the music file in question was transmitted directly to his or her computer from a remote server.

Mr. Cooper did not engage in trading the digital music files and was not offering for sale the sound recordings. He derived a collateral commercial benefit from the sponsorship and funding he received for the advertising material on his website. He used the hyperlinks on the website, and the high traffic of internet users which was generated by these hyperlinks, to procure sponsorship. The court found his website was designed to encourage downloading of files.

The Court stated “it is immaterial, in my view, that Mr. Cooper’s website operated automatically in the sense that, although he could edit links on the site, he did not control the usual way in which links were added to the site. The evidence also leads to the inexorable inference that it was the deliberate choice of Mr. Cooper to establish his website in a way which allowed the automatic addition of hyperlinks.”

Now compare the facts and decision in SFX Motor Sports, Inc. v. Davis. SFX is the copyright owner of certain footage of motorcycle racing events. The footage is of live race events. This is a case of first impression in the 5th Circuit Court as it deals with live internet webcasts. There is an analogous case decision in National Football League v. PrimeTime 24 Joint Venture, 211 F.3d 10 (2d Cir. 2000) in which that court issued a permanent injunction against the defendant for linking a third party’s live football coverage to a satellite transmission to Canada.

Defendant Davis streams SFX’s copyrighted live races in realtime to Davis’ viewers. SFX argued irreparable harm because this unauthorized usage limits SFX right to sell sponsorships and endorsements on its own website as the exclusive source of the footage via webcast. The Court found that SFX showed a substantially likelihood of succeeding on the merits of a copyright infringement claim and a preliminary injunction was issued until a trial is held.

There are several similarities between these cases. First, the defendants had their websites designed so that transmission of the third party copyrighted material would automatically stream or download to visitors of their websites. Second, both defendants made money from advertisements on their websites. Third, each had knowledge they were not the owner of the works that were being streamed or download.

Cooper, decided under Australian copyright laws, was an appeal of a lower court decision in which the defendant was liable for copyright infringement for “authorizing the making of copies of the whole or substantial part of the alleged sound recording without the license of the owners or exclusive licensees of those sound recordings.” The SFX decision was the grant of a preliminary injunction restraining the actions of Davis, but not an actual ruling of infringement.

Read the Cooper Opinion

Read the SFX Opinion