The case in question involves a site called Supercrosslive, which was sued for linking to audio streams from another motocross site called SFX Motor Sports. The latter claimed that by “deep linking” directly to the podcasts, Supercrosslive was depriving it of the revenue from ads that visitors would have seen (and presumably thought about clicking on) if they had made their way through the website to the podcasts themselves.
As the CNET story makes clear, there have been a number of rulings that look at the issue of linking to illegal material, including a piece of software for decrypting DVDs, but there haven’t been many cases which suggest that linking to legal material could be forbidden by a third party. In fact, there have been several U.S. rulings that found linking — even “deep linking” — is totally legal, including this one.
On the surface, it’s easy to see the point that SFX is trying to make. It litters its website with ads, hoping that the people who want the audio clips will pass by them and generate some income, and then Supercrosslive links directly to the podcasts and allows people to bypass all the ads. For you legal beagles, there’s more discussion of the issues at this blog, written by one of Google’s senior counsel.
The important point, however, as Techdirt notes, is that there are any number of ways for the site to prevent someone from linking directly to or streaming the audio — they could require a password, they could only allow downloading, they could filter out direct links from Supercrosslive’s IP address, and so on. If you don’t want people to link to things, then there are any number of ways to achieve that goal.
Unfortunately, the Texas case (unless it is overturned) could set a dangerous precedent.