October 20th 1997
Ellen Poler is an attorney and publishing consultant.
By Ellen Poler
Introduction (Explanation of Frames)
"FRAMES" ARE A FEATURE of hypertext mark-up language (HTML) available for use in Netscape Navigator and Microsoft Internet Explorer. It was introduced as a HTML extension in 1996. "Frames" refers to the technical capability to divide a browser window into multiple, independently scrollable frames with different layouts, and to assign separate document (URLs) to each of them. Each frame may have text, graphics, or other HTML elements, (e.g., IMG links, hypertext, and embedded frames). The widespread use of frames on the Web has made them a de facto standard, and almost every new browser supports them. They enable visitors to a frames-based site (meta-site) to surf a roster of related Internet web sites, and enable the incorporation of remote sites wholesale into Web sites without terminating the connection to the linking site. They also enable the sponsor of the meta-site, or content aggregator, to compete against the individual web sites for advertising revenue.
Because of the TotalNews case, it is advisable for a content aggregator or framer to secure permission to link otherwise unrelated sites by use of linking agreements. In a brief flurry of activity early in 1997, it became apparent that Frames enabled web designers to build attention-getting meta-sites aggregating, say, news content as in the TotalNews case, which became a cause celebre before being settled.
Most or all of the contents of the aggregated sites are displayed on the user’s monitor framed by the aggregator’s logo, URL, and banner ads. It is technically feasible for the framer to obscure or display the individual information providers’ advertisements, so any linking agreements should specify that the display must include all of the linkee’s advertisements and content. Obscuring any part of the target page may cause visitors to the site to believe erroneously that it is provided by the aggregator. If the framer is required not to obscure any portion of the target’s page, the target’s viewers may in effect be subject to a double-dose of advertising, and both the content aggregator and its linked sites may be competing for the same advertising dollars.
Frames legal issues were untested until suit was filed against TotalNews in late February by a group of high-profile news providers who claimed copyright and trademark infringement, misappropriation and trademark dilution. The complaint was available on the Web. Potential issues can include web site piracy if content is packaged and presented as if it is another’s creation. Trademark dilution can be a state cause of action; other relevant statutes include the Lanham Act and the 1995 Federal Trademark Dilution Act (PL No. 104-98, Sec. 3(a), 109 Stat. 985, codified at 15 USC 1125[c]. ) Agreement issues include whose ads will be displayed in the aggregated site, and liability of the information provider or aggregator in the event that the other is sued by another content provider.
It was suggested that an industry-wide permissions protocol could be developed to solve some of the problems posed by aggregating, inlining and framing. In the meantime, a "workaround" for the problem has been the use of linking agreements by many major commercial web sites (whether or not they are "meta-sites"). See http://www.eff.org for the Electronic Frontier Foundation position on this issue.
A Javascript solution to unwilling inclusion in a metasite is to identify and eliminate framing from any solution (provided the browser has Javascript turned on). All incoming HTTP requests (requests for a web page) can be identified as to source by the target -- the page that supplied the link that was clicked (the HTTP-REFERRER field). This can also be done at the server level. Information providers can, therefore, filter out any and all "bad" or undesirable linkers.
All meta-site web sites should provide a disclaimer of liability for contents. They should identify the various trademarks used in the aggregate site. Certainly any provider of financial or professional information must disclaim liability, and urge users to seek professional, expert advice.
Click here for documents relating to the TotalNews Case.
The controversy over web site aggregation emerged when http://www.totalnews.com linked some major news sites on the Web. TotalNews of Arizona (a small business with five employees) was started in October 1996. It had affiliates providing custom computer programming services to TotalNews, and web site design. TotalNews described itself as a directory of news sites, though it did contain some original content. It was quickly sued in Federal Court in New York City for infringement of copyright and trademarks by the following six news vendors: CNN, Dow Jones, Time, Times Mirror, Washington Post, and Reuters. They claimed it was a "parasitic site" that was "republishing," though it appeared to be merely linking. TotalNews also provided original content, including a weekly guest column, at the time.
Issues claimed by the plaintiffs included unfair competition, copyright infringement, trademark infringement, misappropriation and trademark dilution. The plaintiffs claimed in their suit that their web sites appeared in a form other than what was intended, to the defendant's economic advantage. Given the size of the TotalNews operation, it is hard to see how they could actually have competed for advertising with their well- heeled newspaper targets. Other sites, however, soon started to appear, selling advertising based on the ability of the linker or meta-site to "republish" the content of an information provider’s site (with or without that site's advertising), in the content aggregator’s frame, adjacent to information provided by its competitors. And the number of content providers at the TotalNews site has increased substantially since April 1997.
After the TotalNews case was settled, content aggregators (framers, linkers) started to seek agreements with information providers (targets). Early commentary from the legal community was that there was no infringement; it was believed that TotalNews enhanced the exposure of the sites it featured, though unfair competition for advertising was not raised as an issue. The vendors’ pages are presented just as designed; there is no suggestion that the source is TotalNews. The site is providing pointers to sites that will be valued by visitors. Technical commentary (e.g., John Dvorak) tended to over-react to the lawsuit as a death-blow to the Internet and World Wide Web. The site was described as having "the best most organized links to newspapers around the world…" and as a "classic new-wave metasite" containing in its frames, meta-advertisements…. When you link to CNN, for example, you get a CNN advertisement in the frame; the CNN ad banners are served as usual. …Total News is actually increasing [the linked sites’] business."
Some lawyers and web boosters took the position that by publishing a site on the web, a publisher makes the site available for linking. Absent a violation of rights in the way the link is constructed or executed (e.g., trademark or copyright infringement) a link does not violate any rights. However, linking agreements are now common between publishers of web sites who have a common business interest, to maintain quality, establish performance criteria, availability, retain control over limitations of liabilty, etc. No copyright liability is seen for a hypertext link that recites a URL (Universal Resource Locator), which merely defines a location without expressive or original content.
A matter of some concern is whether the linker/framer/aggregator is liable for infringement or defamatory material on a second site that has been linked, or whether the content providers can be liable for infringement by one of them. An emerging concern about "known or should have known" is evident; as is the possibility of either site changes after the initial review or contract. Provision should be made for notification in the event that a site contains improper information or is materially changed.
The newsletter of the Electronic Frontier Foundation (EFF) found that TotalNews could be a bad case that makes bad law. It has commented on web content-linking lawsuits, and previously settled litigation about "inlining" in connection with the Dilbert comic strip. See http://www.cs.princeton.edu/~dwallach/dilbert.
To the extent that the Electronic Frontier Foundation represents the technical community, it suggested that a solution to the problems posed by TotalNews would be development of a frames/inlining permissions protocol or adoption of password protection by content providers. It plaintively argued against the de facto public alpha-testing of experimental extensions to accepted standards. It suggested that maybe there should be controlled, private testing and review, including review by attorneys and policy analysts. In its view, the alternative was a crisis – albeit one that was settled by the parties within months.
The Total News site started out as and remains a four-part frame. The majority of the screen is occupied by the "current page" in the right frame (the "target" in HTML). This page changes as the visitor chooses what site to visit. A navigation frame at the left contains buttons which are links to news vendors. Since its debut in early 1997, Totalnews appears to have resolved its legal problems and now provides links to a multitude of sources. When a button in the left-hand frame is selected, the main frame fills with the site of the selected news vendor. Frames technology allows the buttons on the left to be visible at all times, while the main window changes.
TotalNEWS now sports three pages of its "terms of service" – stating what it provides ("a link to other sites maintained by third parties"); private registration for those who build personal profiles, and disclaiming any relationship with the third-party web sites. It also contains a remarkable number of typographical errors for a web site that was presumably read by a half-dozen law firms.
The juxtaposition of competitors in the news business may make them compete for timeliness, quality, etc. The chosen sites probably benefit from inclusion, as witness the growth from a dozen links to over a thousand in less than a year. The frames display does not seem to limit the number of content providers that can be included, though it does limit the number of providers whose identities are provided in the first view of the left-most frame.
The frames display provides added value. Web banner advertising is sold at the site, measured by pixels and position on the page. A common Web banner ad size is 120 x 90 pixels, continuing for 90 days. A number of related content areas are chosen by the aggregator. Advertising sold at the individual sites probably is less valuable and less costly, since fewer people visit. It is likely that the meta-site will compete directly with its content providers for advertisers, and some thought should be given to a noncompete provision in agreements between aggregators and information providers, or a royalty from the advertisements on the metasite which is competing with the IP.
Content aggregators should enable a link to a disclaimer of warranties and liability from the opening screen of the home page, and the information providers should have one at their sites.
Consideration should be given to the possibility of failure, liability (giving investment advice, libel, defamation), lack of impartiality (would the aggregator recommend one information provider’s site over another, or "rate" them). Participant authorization of original written material for the aggregator site is recommended. Impartiality may be required if the aggregator compares participants’ sites.
Content aggregators provide filtered, relevant content and may deliver a qualified audience to promote products and services (though measuring Web site "hits" remains elusive). See, e.g., www.moneyclub.com.
References
1. http://www.newbie.net has a frames tutorial from Netscape.
2. For local business press coverage of the Totalnews case, call the Arizona Republic, 602-271-8115. Totalnews’ counsel was Parker Farringer Parker, Washington, DC; the plaintiffs’ attorney was Debevoise & Plimpton of New York, attorneys Bruce Keller and Jerremy Feigelson. The complaint in the case was available on the Web.
3. A "cease and desist" letter is posted at http://www.cs.princeton.edu/~dwallach/dilbert, which contains the correspondence about "inlining" of Dilbert comic strips in a claim that was settled.
4. http://www.eff.org contains policy statements about the TotalNews case. http://www.eff.org
Business Issues
Legal Issues
Solutions
The TotalNews Case
Infringement & Defamation
Benefits
Revenues
Disadvantages of Frames
Issues & Risks
Advantages
If the target site itself uses frames, there will be confusion from frames within frames. This can be solved technologically by using the "top" parameter in HTML coding of the navigation page, so that any site that uses frames will appear in a full-screen browser. (This should be reviewed by the information provider’s technical staff.) Links followed from a page within the frame will display within the frame, even if the visitor has wandered far away from the site where he started. Solution: Use the "open in new window" choice offered by browser. Browsers still display the URL of the frames-definition page, rather than the current page in the location box at the top of the screen. This is cited by the plaintiffs in the Total News case. It should be resolved by browser technology providers. A non-frames-based display could be offered by the information providers.
A major issue between a content provider and an aggregator is "framing out" the content provider’s own advertisements. If the content provider’s own advertisements are not framed out, pursuant to the agreement, the provider must evaluate the risk of irritation to users by providing double the advertising, as well as the likelihood of losing customers to the competing aggregator. While the parties may agree that the aggregator may not obscure or eliminate the information provider’s own advertising, it is possible that the users of the aggregator’s site may rebel against seeing twice as much advertising by viewing the "framee’s page" at the aggregator’s site.
