AJ:

I know I’m late with all of this, but I’m back in college now. However, I’ll try to address the cases you brought up.

Live Nation Motor Sports, Inc. v. Davis

This was a motion for preliminary injunction, not a ruling on the merits; all that was necessary was a likelihood of success. Also, it was issued by a district court, not a circuit court; it’s not even binding on other districts – much less the entire circuit. (Though, obviously, the circuit court could find it relevant.)

Since that injunction, linking has been held not to be infringing at the Circuit level, in multiple Circuits.

Kelly v. Arriba Soft

You’re referring to a case that was withdrawn, as you said. But to say it was only “for procedural reasons” is not quite accurate.

That case was explicitly discussed – and completely shredded – in Perfect 10 v. Google. The court’s description of the case is entirely apropos:

In its now-withdrawn opinion in Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002) [hereinafter, “Kelly I”], amended by Kelly II, 336 F.3d 811 (9th Cir.2003), the Ninth Circuit discussed liability for direct infringement resulting from in-line linking, without addressing how the technology functioned?i.e., who stored and served the infringing content. Defendant Arriba operated an image search engine much like Google’s?it in-line linked to and framed, but did not store or serve, full-size copies of Kelly’s photographs. Stating that “[n]o cases have addressed the issue of whether inline linking or framing violates a copyright owner’s public display rights,” id. at 945, the Ninth Circuit nevertheless analogized to Webbworld and Hardenburgh, ignored the fact that the defendants in those two cases actually hosted and served the infringing content, and concluded that Arriba had directly infringed Kelly’s exclusive right to display. Kelly I, 280 F.3d at 945-47.

Like the defendants in Webbworld and Hardenburgh, Arriba is directly liable for infringement. Arriba actively participated in displaying Kelly’s images by . . . having its program inline link and frame those images within its own web site. Without this program, users would not have been able to view Kelly’s images within the context of Arriba’s site. Arriba acted as more than a passive conduit of the images by establishing a direct link to the copyrighted images. Therefore, Arriba is liable for publicly displaying Kelly’s copyrighted images without his permission.

Id. at 947.

The decision in Kelly I was roundly criticized:

If [the] logic [of the original opinion in Kelly] is valid, it should ensnare AOL, Dell, Microsoft, and Netscape as well. Indeed, it condemns those other actors a fortiori: the user of those products can see Kelly’s entire web site displayed, whereas Arriba only offers a portion of Kelly’s material, framed by its own proprietary content. Accordingly, Arriba’s usurpation of Kelly’s display right is even less than the others.’

4 Nimmer on Copyright [hereinafter “Nimmer”] ? 12B.01[A][2] (2005).

Some seventeen months later, perhaps “reflect[ing] sub silentio that the panel no longer believed in the substance of its much-criticized conclusion,” id., the Ninth Circuit withdrew the portion of the Kelly I opinion dealing with direct infringement on procedural grounds.

That case also cited a huge number of other cases that said, explicitly, that linking cannot be direct infringement:

Certain other decisions, some unpublished, do deal with traditional hyperlinking?i.e., rather than incorporating thirdparty content via in-line linking or framing, websites create hyperlinks that transport the user directly to the linked-to, infringing page. Each of these cases holds that such linking does not implicate any of the exclusive rights under copyright. Ticketmaster Corp. v. Tickets.com, Inc., No. CV 99-7654, 2000 WL 525390, at *2 (C.D.Cal. Mar. 27, 2000) (unpublished) (“[H]yperlinking does not itself involve a [direct] violation of the Copyright Act (whatever it may do for other claims) since no copying is involved.”); Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1202 n. 12 (N.D.Cal.2004) (“[H]yperlinking per se does not constitute direct copyright infringement because there is no copying, [although] in some instances there may be a tenable claim of contributory infringement or vicarious liability.”); Bernstein v. JC Penney, Inc., No. 98-2958, 1998 WL 906644, at *1 (C.D.Cal. Sept. 29, 1998) (unpublished) (granting, without discussion, defendant’s motion to dismiss on the ground that hyperlinking cannot constitute direct infringement); Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660, 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (unreported) (linking to content does not implicate distribution right and thus, does not give rise to liability for direct copyright infringement).

they are also applicable where the transmission is capable of reaching different recipients at different times…

A link (including an embed) is simply not a “transmission.” This is made abundantly clear in the MyVidster case:

myVidster is giving web surfers addresses where they can find entertainment. By listing plays and giving the name and address of the theaters where they are being performed, the NewYorker is not performing them. It is not “transmitting or communicating” them. Is myVidster doing anything different? To call the provision of contact information transmission or communication and thus make myVidster a direct infringer would blur the distinction between direct and con-tributory infringement and by doing so make theprovider of such information an infringer even if hedidn?t know that the work to which he wasdirecting a visitor to his website was copyrighted. […] myVidster doesn?t touch the data stream, which flows directly from one computer to another, neither being owned or operated by myVidster.

You are saying that one who violates the “to do” is a direct infringer, but one who only violates the “to authorize” is an aider and abettor.

Except merely linking to a performance isn’t “authorizing” that performance. The linker does not control what is or is not on the third-party site that streams the content. He has no ability to “authorize” anything.

Besides, “authorizing” the performance only gives rise to contributory infringement, as the Congressional record makes clear: “Use of the phrase ‘to authorize’ is intended to avoid any questions as to the liability of contributory infringers.”

Since it’s streaming, only the public performance right is implicated. I think we agree on that.

We do. Here, I’d just like to point out that this is a criminal case, and infringing on the public performance right cannot be anything more than a misdemeanor – even if there are multiple offenses. No felonies could even possibly have been committed.

That’s assuming direct infringement on the public performance right. There is no “contributory infringement” in criminal law; there could only be “aiding and abetting” of the direct infringement. It’s doubtful that merely providing a link would raise to the level of aiding and abetting, but even if it would, it would be aiding and abetting a misdemeanor at worst.

Embedding a video to be streamed by others violates the public performance right. There is no doubt about that.

Indeed, there is no doubt. There’s no doubt that merely linking to infringing content absolutely is not a direct infringement of the “public performance” right. (“Embedding” a video, legally speaking, is simply providing a link.)

The only question is whether it could be contributory infringement, or not any kind of infringement at all.