[Robert Davis, who runs Supercrosslive.com] argued that he did not actually copy any material, he only provided a link to it which opened the material in a user's media player, but the court ruled that that link broke the law.

"The court finds that the unauthorized 'link' to the live webcasts that Davis provides on his website would likely qualify as a copied display or performance of SFX’s copyrightable material," said Lindsay. "The court also finds that the link Davis provides on his website is not a 'fair use' of copyright material as Davis asserts through his Answer."

Brendan, I was disappointed to see your letter to Xeni in which you argued that deep-linking should be prohibited. The question of whether a copyright holder has the right to control who gets to publish the location of his files is a simple one to answer: he should not. If you believe that a copyright holder has to the right to decide who is allowed to tell you where his publicly available files live, you're saying that all the other user rights in copyright -- parody, samplying, criticism, etc -- are necessarily at the rightholder's sufferance. These rights can't be exercised without the fundamental freedom to repeat the true fact about the location of this file or that. You -- and everyone else who borrows liberally from the blogosphere, myself included -- are a tremendous beneficiary of the principle that has prevailed since the first web-page went live: no one can control inbound linking by legal means. This is in the RFC for the Web. It's in the RFC for the RSS. I don't buy for one second the argument that because this challenges your ability to turn your radio program into something else, the entire web should change directions and adopt a new norm: "You may only include a hyperlink if the person who controls that file isn't worried about his business-model." There are LOTS of people who could have new business-models if fundamental internet freedoms, like the freedom to link to any URL that will serve back a page, were abolished or rewritten. A competitor to Google that hired a million phone-monkeys to make sure that they had *permission* to link to everything in the search-engine's database could come into existence with a radically reduced index and then get the law to get rid of the superior resource we have in Google. I respect your desire to move to "other platforms" but if the platform you're headed for is the Web, you need to actually formulate a coherent plan that doesn't start by removing the Web's most fundamental premise: that anyone can link to anything. The plan you seem to have formulated, one where I can't include a URL from your server without your permission, is NOT a Web-platform business-model. It's a business model that throws out the Web in favor of an AOL-style network. No one but TAL (or you) is making any files available if I publish an RSS feed with your deep links in them. Describing hte location where a file lives is not making them available -- not in the legal sense, or the technical sense, or the commonsense sense. I hope you'll reconsider this idea and look beyond the immediate interest of wanting to be able to maximize your show's gain and to the health of the Internet and the open source ethos whence you have taken your inspiration. And further to this: If someone decided to grab our publicly available, CC-licensed mp3 files and re-distribute them in a different way than we'd planned (say, filtering out everything but shows about Iraq) I can imagine we'd have a problem with it. First of all, you have gravely misunderstood what CC licenses permit. You have granted permission for someone to do *exactly* this by using a CC license. Second of all, what if someone were to compile a printed index listing the URLs of all the shows that don't talk about Iraq? Do you seriously mean to say that you think that publishing such an index is wrong? All an RSS feed is is a collection of URLs. References.

Cory - I'm a little shocked to find myself suddenly on the wrong side of a set of issues we've championed since the beginning of this show; I certainly don't advocate an AOL-style Internet, and I do understand the consequences of the CC licenses that we've embraced in our show and on our site. I couldn't prevent anyone from deep-linking to an mp3, nor would I try to. Hence the phrasing "I can imagine we'd have a problem with it" and not "I'd send a sharply worded cease-and-desist letter." If I was unclear about it, the world can, indeed, deep-link to our files. It's right there in the license. With BB's exposure, in fact, I'm sure I'll see it happening now in the next twenty-five minutes. What I'm getting at is that the nature of what a radio show IS is changing. Until ten years ago it a sound file only: on tape or live over the radio. The "feed" for this show was the simple knowledge that if you turned your radio on every Tuesday at 9:00 PM, you'd hear the newest installment of the same program. The only content of this feed was the audio itself. As radio producers adopted the Internet, this model continued: what radio produced was audio -- perhaps streamed on demand -- and only the audio mattered. Podcasting, though, offers a number of additional buckets of content that can complement this audio. iTunes displays a program description, for example, that comes from the RSS feed and not the ID3 tags of the file itself. What if I were to include a clue for each night's show that ONLY displayed in the program description? The program description, the feed description, this is content that we produce; it's a part of the shape of our show. By creating your own RSS feed of the audio files, you are in effect saying "You, radio show, provide only audio files. I will do the rest." But the rest, that's part of the brand and footprint of our show in a way that didn't used to be true for radio. Is it legal to decide for yourself that you're going to shape everything about our show past the audio file? Sure. Have at it. But does it restrict our ability to determine what our show looks like in a new environment? Yes. We get almost 8,000 downloads of every show; the data in our podcast RSS feed -- the show descriptions that we all collaborate on -- is as much a part of our brand as the Chris Lydon intros you hear on FM radio every night. This isn't an issue of business models; we don't charge for our content at all. It's an issue of the transformative nature of RSS that I think is still unresolved. What's pretty cut-and-dried for TAL -- they don't provide mp3s without at least a bit of hacking, and they don't use a CC license -- is a little trickier for us. I'm perfectly willing for people to grab our mp3 files and do what they will with them, but I do think it's fair to point out to anyone who might hack an RSS feed of our show that the consequences for us are greater than just redirecting the files themselves. Look, we signed on to Creative Commons, we believe in it and I'm not going to lose any sleep if someone creates a new RSS feed. And I'm a little worried now that this is going to go down on the Internet as my manifesto, which it's most definitely not. But I'd appreciate it if you'd post at least some of this as a response; I'm a little worried that something got misunderstood.