MobiTV threatens suit over link providing free video streams

MobiTV, a company that streams television channels to mobile devices, is upset that someone has pointed out a link on its Web site that lets anyone watch TV for free.

So it's threatening to sue.

A letter that a lawyer for MobiTV sent to the owner of HowardForums.com on March 4 invokes the Digital Millennium Copyright Act and says posting the hyperlink is a violation of U.S. copyright and trade secrets law. (Howard Forums is a popular place to find information about mobile devices, including technical tips and availability of unlocked phones.)

(For the record, Howard Chui, the owner of Howard Forums, appears to be living in Ontario, Canada. The server, however, is in Atlanta and therefore is within the reach of U.S. copyright law.)

MobiTV's general counsel, Andrew Missan, sent the letter, which says in part:

MobiTV considers Howard Forums' continued reproduction, public display and distribution of this information and links to constitute violation and infringement of MobiTV's intellectual property rights, including, without limitation, its copyright, trademark and trade secret rights. We are concurrently contacting Howard Forums' host and registrar regarding this matter...Please confirm in writing by 5:00 p.m. Pacific Standard Time Friday, March 7, 2008 that you have complied with this demand. If we do not hear from you by that time, we will be forced to take further legal action to protect MobiTV's valuable intellectual property rights.

The link in question is qtv.mobitv.com/sprintTVlive.mcd--it was apparently an XML file that lists the URLs for specific television channels. That file appears to have been disabled by Friday morning. But the individual television channels, such as rtsp://live.mobitv.com:554/1-CDMA.sdp (for MSNBC), could still be viewed on Friday at no charge by applications such as Apple's QuickTime.

Howard Forums' users, as you might expect, are hardly happy about the threats. E-mail correspondence that Howard Forums posted from MobiTV shows its lawyers consider the link to be obtained through "hacking" and that ICANN will be contacted as well.

On sites like Digg.com, the to-be-expected railing against overly litigious lawyers, poor security practices of the client represented by said lawyers, and mirroring of the links in question is in full swing.

While it's almost always true that technological self-help is a better protector of security than relying on the law, the legal threats still invite this question: Is it illegal under U.S. copyright law to post a link when the owner of the linked-to Web site objects?

It may seem like a simple question--the Web is built atop the idea that linking is free and easy--but the law doesn't always track technology. So the answer is a bit complicated.

At least in the United States, posting a link is First Amendment-protected activity. On the other hand, copyright can trump the First Amendment in some circumstances.

The concept of "contributory infringement" is a powerful one in copyright law; it says generally that someone who directly contributes to infringement should be held liable. In Sony v. University City, the U.S. Supreme Court said: "The common law doctrine that one who knowingly participates in or furthers a tortious act is jointly and severally liable...is applicable under copyright law." A copyright law treatise by William Patry--now a Google attorney--says: "Merely providing the means for infringement may be sufficient" to incur contributory copyright liability.

In the DeCSS lawsuit, the U.S. 2nd Circuit Court of Appeals ruled in 2001 that 2600 magazine could be barred from publishing on its Web site a clickable hyperlink to infringing material. Here's an excerpt:

A hyperlink has both a speech and a nonspeech component. It conveys information, the Internet address of the linked web page, and has the functional capacity to bring the content of the linked web page to the user's computer screen...Application of the DMCA to the defendants' linking to Web sites containing DeCSS is content-neutral because it is justified without regard to the speech component of the hyperlink...Our task is to determine whether the legislative solution adopted by Congress, as applied to the appellants by the District Court's injunction, is consistent with the limitations of the First Amendment, and we are satisfied that it is.

The facts in the DeCSS case are slightly different from the MobiTV case, of course. In the former, the material being linked to was, by the court's view, violating copyright law. Here, the material being linked to doesn't violate copyright law--it's the unapproved viewing that, according to MobiTV, does.

Will a court agree? Unless either MobiTV or Howard Forums backs down, we may get a chance to find out.