The court cited the Intellectual Reserve case, discussed in Section III.D.6 above, for the
proposition that, in extreme cases, even encouraging browsing of infringing web sites can violate
the copyright laws.^3095 “From that conclusion, it is easy to allow room for liability for
defendants who deliberately encourage use of infringing web sites by establishing links to those
sites. This is not a case where Funeral Depot merely found some useful material elsewhere on
the internet and encouraged its shoppers to link to those sites. Instead, Funeral Depot actively
secured control of the contents of the Veterans Society website and modified the website to use it
for its own purposes.”^3096
The court noted that the “casket gallery” on the Veterans Society web site did not exist
until the defendant created those web pages, that it had designed and paid for them, it still
controlled changes to them, and they displayed the defendant’s phone number. The defendant’s
control of the web pages was so complete that the owner of the Veterans Society was not aware
of any changes to the casket portion of its web site.^3097 “These facts are unusual enough to take
this case out of the general principle that linking does not amount to copying. These facts
indicate a sufficient involvement by Funeral Depot that could allow a reasonable jury to hold
Funeral Depot liable for copyright infringement or contributory infringement, if infringement it
is. The possibility of copyright infringement liability on these unusual facts showing such
extensive involvement in the allegedly infringing display should not pose any broad threat to the
use of hyperlinks on the internet.”^3098
- Live Nation Sports v. Davis
The facts of Live Nation Motor Sports, Inc. v. Davis,^3099 are discussed in Section II.B.3
above. The court granted a preliminary injunction enjoining the defendant from providing
Internet links to the plaintiff’s webcasts of its motorcycle racing events or otherwise displaying
or performing the plaintiff’s webcasts.^3100 With almost no analysis, the court ruled that the
plaintiff had a likelihood of success on its copyright claim because “the unauthorized ‘link’ to
the live webcasts that [the defendant] provides on his website would likely qualify as a copied
display or performance of [the plaintiff’s] copyrightable material.”^3101 The court found a threat
of irreparable harm to the plaintiff because the defendant’s links would cause the plaintiff to lose
its ability to sell sponsorships or advertisements on the basis that its website was the exclusive
source of the webcasts.^3102 Although the unclear facts of this case make its reach uncertain, it
could potentially imply that any unauthorized link that causes material available on another site
(^3095) Id. at 37,701-02.
(^3096) Id. at 37,702.
(^3097) Id.
(^3098) Id.
(^3099) 2006 U.S. Dist. LEXIS 89552 (N.D. Tex. Dec. 11, 2006).
(^3100) Id. at 18.
(^3101) Id. at 12.
(^3102) Id. at *15.