"Deep Link" copyright infringement?
Today, a BoingBoing post addressed a North Texas court ruling that determined a fellow who LINKED to content on another website had in fact engaged in copyright infringement.
Now, it seems to me that when you boil down copyright law in terms of the use of others' words, art, creation, etc., the point is whether or not you take possession of that work. In the case of fair use, one assumes control and possession of a (copy of a) work and places it within, or adjusts it for, a larger context to make a new point with it, use it to comment on itself, be ironic, etc.
The key here is the idea of possession. The internet may be a largely amorphous entity (dare I say, organism?), but when it comes to possession, I think anyone would agree that to assume possession would mean to host the media directly on one's site. In my mind, it is an issue of whether Robert Davis assumed possession of the material, constituting infringement. And if he linked to content that was HOSTED ELSEWHERE, then I think it is clear and simple that he did not take possession, and therefore did not infringe upon any copyright. After all, it is not copyright infringement for me to tell someone about a website, is it? Linking is the blogger/webdesigner's way of saying "check it out" (in fact, even for me to TELL you about something on the internet, more often than not I will have to tell you a website).
Of course, my proposed/presented idea of possession is then an interesting one, bringing up new issues that websites such as YouTube take advantage of... the fact that material is HOSTED by people other than the makers themselves. Then, there is certainly a dispute (purely from a legal perspective) over who "owns" the material. YouTube has stated in it's EULA (End-User License Agreement), at least the last time I was aware, that they assume the copyright ownership of any material posted to YouTube. The morality there is, obviously, questionable and an entirely different debate. Read EULA's for everything!!! They're often boring and long so that you WON'T, and then you'll miss what they said that might have been of some import to you.
Of course, this has been my opinion.