Unlawful Linking and Framing



By Tanya Rose

I. Introduction:

Computer networks have caused a drastic change in the way we disseminate and gather information. As of 1997, 40 million people were using the Internet.1 By the end of 1999, that number is expected to grow to 200 million. 2 The popularity of the Internet, and particularly the World Wide Web, continues to increase at astronomical rates, yet most of the legal questions surrounding the Internet revolution have yet to be answered. Formerly established rules of law must be reconsidered and analogized to the new technologies. And because of the uniqueness of the Internet, drawing these analogies is not always easy. One issue that has emerged in the fervor is that of protection intellectual property rights. How are we to guard against the misappropriation of the proprietary work of others in this unique medium? Even more specifically, what rights are implicated when one engages in linking and framing practices? Because linking and framing are so pervasive on the World Wide Web (the Web), such practices pose a signigicant threat to those who wish to protect their original work.

II. Linking: The Structure


Given the vastness of the World Wide Web, there is a need for efficient methods of grouping Web pages with one another. The linking function is the standard method used. Web pages 3 are created using HyperText Markup Language (HTML).4 Each Web page has an address or Uniform Resource Locator (URL) that identifies its whereabouts to users. 5 A “link” is an “embedded electronic address that points to another Web location.” 6 One type of link, referred to as an “out link,” enables a user to jump instantaneously from one site to another simply by clicking on a word or phrase with the mouse. 7 The out link stores the electronic address of the destination site, and clicking on the link sends that data to the browser, which then moves the user to the destination site. 8


A second type of link is the “in-line link,” which points the user toward an image or audio clip that has been “pulled in” from another site.9 Instead of downloading the image to his own computer for the purpose of posting it on his site, the site-owner simply provides the location of the image in the coding; the image then shows up on the site-owner’s site as if it resides there.


Both types of links raise copyright and trademark issues. Such links might infringe the copyright owner’s exclusive reproduction, distribution, or display rights, for example. The copyright owner may want to control how and when information on his or her site is presented to the public; a link may be seen as unathorized in that it changes the path through which users travel to get to the information, making it available to the public without regard to the copyright owner’s wishes.10 The owner could argue also that a link enhances the value of the linking site; the “linking site is ‘based upon’ the linked site and therefore, constitutes a derivative work.” 11 The linked site owner could argue that a link causes harm in that it results in overwhelming traffic on the linked site from an audience the owner is not targeting. Unwanted traffic prevents the owner from distributing his copyrighted work in the manner he sees fit. 12 The linkee could also argue that there is danger of confusing sponsorship or affiliation, or even that the link diminishes the commercial value of his site, if, for example, the linking site contained tacky or offensive material. Offended users would then discriminate against the linkee, assuming the two sites are somehow connected. Together, these arguments cut against any fair use argument that the linker might use. 13


How would the analysis change, however, if the link were simply regarded as a reference to another work, “much like a citation in a law review article”? 14 In other words, a linker might argue that a mere link does not transform or “incorporate” the material into the linking site in a way that would implicate copyright. Rather, the material “is seen in its original form when the user arrives there as a result of the link.” 15

Conceivably, a site containing multiple links could be seen as a sort of index, or collage of available material on the Internet and nothing more. Besides, doesn’t the very culture of the Internet dictate that users have the freedom to link? The hyperlink has become so essential to the basic operation of the Web — many argue that it IS the Web — and as a result, must be legally allowed to some extent. All material is digitally interconnected in some form or fashion, thus making it simple to navigate through enormous collections of data. 16 “Jumping” through a maze of Web sites is the essence of the World Wide Web. Interconnectivity thus becomes imperative. Taking away or unduly limiting the ability to link would render it useless as a medium.


III. Web-Linking Litigation

To date, there has been only a handful of cases dealing with linking and all have been in the copyright and trademark contexts. Copyright theories require a showing of improper attribution of material used, or that the defendant is “passing off proprietary material . . . as its own.” 17 One of the exclusive rights a copyright owner holds is that to “recast, transform or adapt” the copyrighted work. 18 A plaintiff thus must argue that the defendant — through linking practices — is engaged in creating a new work, “based upon” or derived from material that is protected. The issue, as mentioned previously, is whether a link actually incorporates the material, “transforming” it into something new, or alternatively, whether the link simply points the viewer in the direction of the original work, much like a sales clerk in a book store would point a customer to the right aisle.


In Shetland Times Co., Ltd. v. Wills, 19 the Shetland Times maintained a site containing the articles that appeared in its print newspaper. The homepage contained the headlines; clicking on a certain headline would take the viewer to the text of the article. 20 The Times planned to reserve space for its advertisements on its front homepage. The defendant, The Shetland News, used the Times’ headlines on its own Web site. Users viewing The Shetland News site could view the text of an entire Times articles simply by clicking on a link provided by the News site. Users, thinking they were viewing articles posted by the Shetland News, had actually unknowlingly jumped to a location deep within the Times site, bypassing customer service information and advertising. 21 The Shetland Times argued that this detour harmed the Times’ ability to market to its intended audience through advertising. 22 The Shetland News’ use of the Times headlines, the Times argued, constituted copyright infringement. The court issued a temporary injunction, ruling that the headlines could indeed constitute an infringement of copyright. 23 The parties settled the dispute in November of 1997, agreeing that the News could continue to link to the Times’ articles, but only by marking any “Shetland Times story” as such. The Shetland News was also required to use the Times logo next to any link leading to a Times article, and any link to the Times site had to connect only to the Times homepage and not to a location deep within the site. 24


The Ticketmaster v. Microsoft 25 case, currently pending, also addresses the implications of “deep” hyperlinking without permission. Ticketmaster filed suit against Microsoft for using Ticketmaster’s name and logo on a Microsoft website, “Seattle Sidewalk.” The use of “deep” hyperlinks to specific pages within the Ticketmaster site would allow the viewer of the Microsoft site to bypass all Ticketmaster customer service information and advertisements provided on its homepage, by going directly to Ticketmaster’s concert ticket information. 26 If the links had been to Ticketmaster’s main page, as a “surface” link rather than to a page deep within the Ticketmaster site, there would likely be no lawsuit.


Ticketmaster claimed that Microsoft’s site was unduly enhanced by the link, as it added value to the site that was not previously present. Ticketmaster also claimed actual injury in that it had a business relationship with MasterCard, whereby Ticketmaster promised to give MasterCard a privileged advertising status compared to other credit card advertisers. Ticketmaster argued that Microsoft’s bypassing of Ticketmaster’s homepage caused harm to Ticketmaster by stripping MasterCard of any prominent advertising status that had been promised. 27


Microsoft, in its answer, contended that links should be allowed as a general rule to “remove any chill from the free workings of the Internet.” 28 To bolster the “chill of expression” argument, Microsoft alleged that such links are commercial speech and thus, protected under the First Amendment as “basic [commercial] information and commentary.” 29 Microsoft also included an assumption of the risk argument, stating that Ticketmaster should have foreseen when it set up its site that owners of other Web sites would create links. When a company providing tickets to an event relies upon and even invites other businesses to aid in the distribution of those tickets, hypertext links are a necessity and should be expected. Microsoft claimed that it in no way altered the content present on Ticketmaster’s site — that it did not redistribute, incorporate, or label the content as its own. “Whether or not the viewer accesses a Ticketmaster Web Page document is up to the viewer”; 30 Microsoft simply provided the means of getting there. Following this logic, Microsoft argued that it could not be liable, for it was not a party to the contact between the user and Ticketmaster. 31 The case is currently pending in federal court.


It is evident that the law in this area is just starting to develop, and there are no definitive answers. It is clear, however, that links transporting a user to a different location without warning may subject the linking party to copyright or trademark infringement liability. 32 In such situations, commercial site owners should obtain permission from the site or at the very least, should make it clear to viewers that they are “jumping” to a different location.


Link providers may be able to successfully argue that links are necessary, as they are the most fundamental and basic function of the Internet. Link providers, however, may find it more difficult to defend against charges of copyright infringement when the material is embedded within frames. Thus far, the discussion has involved situations where the content of the target site is in no way altered or distorted by the linking site. Framing, however, is a more intrusive and pervasive activity. 33

IV. Framing


Frame technology is more complicated than that of hypertext linking. Frame technology was developed by Netscape and introduced in January of 1996. 34 Framing allows the publisher of a site to parcel her site into multiple sections or separate windows that function individually but appear on the user’s screen at the same time. 35 Frames “allow a site to display an on-screen border that remains constant while various other sites are projected within the border.” 36 Framing allows the original site to assimilate entire pages of other sites into its screen while still preserving advertising and logo of the framing site — all the while retaining control of the viewer. 37 While viewing the miniature windows, the viewer sees the entire assimilated site at a reduced size.

Frames are beneficial because they increase the viewing options at any given time and increase the chance that the viewer will not “jump” to another site through a link. The decision to use frames is a strategic one made by the site-owner; if the viewer can see a desired site (through a frame) without changing locations, the framing site benefits, for its logo and advertising remain on the screen continuously. Naturally, the framed site owner becomes upset when his ads are concealed or overshadowed.


Furthermore, framing causes confusion as to the ownership of a site. Usually, the URL displayed in the frame is that of the framing site, not of the framed site. 38 As a result, the origin of content within any frame is not clear to the viewer. 39 Users many times may mistake the framed site as part of the original site. 40 Some may assume that because the content is the same, the sites are affiliated with one another, or that the framing site has at least been authorized to act on behalf of the original site. Such confusion has led to lawsuits. 41



A. Framing as infringing copyright


Under United States law, because a short phrase or series of words does not represent copyrightable material, a link itself does not violate copyright. The act of creating a link does not implicate the content of a particular site, but merely directs the user toward a particular location. 42 “Inserting in one’s page a link to another site can be considered no different than listing a phone number or address for the user to call or visit.” 43 However, a competing view is that the link represents more than a modest a group of words, but rather, a mechanism used to convey or deliver an entire site, thus violating the exclusive display right.


Further, a framed site could be considered a “derivative” work or reproduction, and thus violate copyright laws. Any work “consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work.” 44 The distortion or alteration caused by framing, if significant enough, could likely be considered “derivative” or an entirely new creation. 45 Under this notion, plaintiffs would not have to show that an actual copy took place, but only that what the viewer perceived through the frame was distored enough, or different enough from the original so as to constitute something separate and distinct.



B. Framing as infringing on trademark


A framed site can also cause trademark and dilution problems. Infringement would result here from the “unauthorized use of proprietary marks for commercial purposes as they appear within the frame.” 46 Dilution can be asserted due to the display of trademarks within a frame that includes a logo and URL of another organization.
A federal court in Playboy Enterprises, Inc. v. Frena, 47 ruled that when a dial-up computer BBS uploaded computer images that displayed the trademark of Playboy, then removed the trademarks and added the name of the BBS to the photographs, the BBS service infringed Playboy’s trademarks. 48 A frame surrounding a target site that displays the logo of the framing site can be considered an obscuring of the trademark and thus, an infringement. 49 The law in this area is less fluid than in the copyright arena. Rules of law concerning dilution are not as difficult to analogize to the Internet; issues concerning whether an image has been obscured are arguably more cut and dry.

V. Framing: The Caselaw



A. Washington Post Co. v. TotalNEWS, Inc. 50


In February of 1997, the Washington Post and other news organizations sued Total News, Inc. claiming that framing practices are the equivalent of pirating copyrighted material. They alleged “blatant acts of misappropriation, trademark dilution and infringement, willful copyright violations . . . in connection with a parasitic site known as ‘totalnews.com.’ ” 51 The Total News site was designed to consolidate over 1200 news sources into one location, 52 thus comprising a comprehensive source of news. The ‘totalnews.com’ URL appeared at the top of the page, while a framed column containing names of several of the plaintiffs’ news organizations appeared on the left side of the page. The bottom of the Total News homepage contained its own advertising, and at the center of the page was a “news window” frame. Plaintiffs alleged that defendant’s practice of framing not only caused viewers to circumvent or bypass certain information, but caused distortion and alteration of the original site content. This distorted format, plaintiffs argued, was purposely devised by Total News in order to enhance its own economic standing. 53 Because the space alloted to the news frame in the center of the Total News homepage was smaller than standard screen size, the effect of defendant’s design was to display only a portion of the original content from the target sites at any given moment, and the viewer was forced to scroll either up and down, or from side to side to see the whole of the original site. 54 All the while, the user is seeing only Total News advertising and logo.


Plaintiffs contended such alteration of content deprives viewers of seeing the material in the manner plaintiffs intend it to be viewed. 55 Further, plaintiffs alleged that use of defendant’s Web site resulted in loss of revenue. 56 The World Wide Web is a substantial advertising forum; rhe complaint estimated that during 1996, businesses spent more than $150 million on web advertising. 57 Plaintiffs did not object to the simple act of linking, but objected to any practice where significant portions of content are either edited out or altered. 58 In this instance, Total News effectively pulled plaintiffs’ advertising and substituted their own. Such misappropriation “openly free-rides on plaintiffs’ efforts by simply lifting plaintiffs’ content wholesale and selling advertising based on proximity to that content.” 59


Plaintiffs asserted violations of state deceptive practices and unfair competition laws, plus violations of the Lanham Act 43(a). The elements of these actions are based on the likelihood that viewers will be confused about the origin of a particular site, 60 and the likelihood that a viewer would misconstrue the sponsorship or affiliation of the linking site with that of the target site. 61 The fact that the URL continued to display the origin as “totalnews.com,” and not the correct “cnn.com” or “washingtonpost.com,” for example, illustrates a major point of confusion for viewers. Although the Total News URL appears in the window, the viewers is actually — and perhaps unknowlingly — accessing a completely different web site.


In June of 1997, the parties settled the case. 62 Total News agreed to stop the framing practices. Total News could, however, continue to maintain “out links.” 63 Those links, however, could only exist in plain text format (as opposed to using official logos or graphics within the link). 64

B. The Futuredonics case


In September of 1997, Futuredonics, Inc., owner of a site containing a dental referral service, filed a complaint against a defendant that was framing material from the Futuredonics site. The frame included the defendant’s own logo and customer service information. 65 The plaintiff claimed the framing constituted derivative work. The defendant countered with the “reference” argument, saying the frame should be viewed only as a “lens” through which users could view the information that Futuredonics had itself placed on the Internet. The court denied the defendant’s motion to dismiss, but also denied Futuredonic’s motion for a preliminary injunction, ruling that Futuredonics had failed to establish a probability of success. 66 Perhaps this case illustrates more than any other that questions are far from being anwsered; we must simply observe pending and future litigation.


Simply stated, these cases concern commercial fair play. They represent the problem of linkers “piggybacking” upon the efforts of another, benefitting unduly and unfairly. Framing cases, as mentioned, are more egregious because they cause more confusion among viewers, and distort and alter original content in a way more obvious than use of simple “out links.” The arguments are essentially the same here as in linking cases — they are just that much more pronounced.

C. ACLU v. Miller: First Amendment Defenses


While there is not much caselaw on linking and framing issues, one court has already dealt with one state legislature’s attempt to deal with the concerns held by target sites. In September of 1996, a group of plaintiffs including the American Civil Liberties Union of Georgia and the Electronic Frontier Foundation, filed a constitutional challenge 67 in district court against a Georgia state criminal statute providing that it is unlawful to “knowingly transmit any data through a computer network. . .for the purpose of setting up, maintaining, operating or exchanging data with an electronic mailbox, home page . . . if such data uses an individual name, trade name, registered trademark, logo, legal or official seal, or copyrighted symbol . . . which would falsely state or imply that such a person . . . has permission or is legally authorized to use such trade name, registered trademark, logo, legal or official seal, or copyrighted symbol for such purpose when such permission of authorization has not been obtained. . . .” 68

Plaintiffs argued that the statute was constitutionally overbroad, in that it did not define “uses” or “to use.” 69 Furthermore, did not require that the activity in question cause confusion (as do other Georgia trademark statutes), nor did it require an intent to deceive. Further, the statute did not define the term “falsely implies” to indicate whether to simply “use” a trade name or logo would “falsely imply” that the user had obtained permission. Plaintiffs claimed the statute violated the right to free expression, association, access to information and privacy, and stressed the essential nature of the linking function to the operation of the World Wide Web. 70


Plaintiffs claimed that the overbreadth of the statute would cause web site creators to chill their activity, refraining from framing or providing links where they ordinarily would, for fear of violating the “use” provisions of the statute. The Act’s language was so broad, plaintiffs claimed, in that it prohibited “even clearly noncommercial use of names and logos to provide links in web pages in the absence of express permission . . .” 71 Many site designers would use the material for political speech, religious expression, commentary and educational expression. It would be impossible for many plaintiffs to obtain such permission; hence, the most “useful and acclaimed feature of the World Wide Web” would be destroyed. 72


The court granted a preliminary injunction enjoining the enforcement of the Act. 73 The court held that even if the statute could be used to prosecute those who “falsely identify” themselves in order to deceive, the statute is nonetheless overbroad because it “operates unconstitutionally for a substantial category of the speakers it covers. 74
For the time being, the “right to hyperlink” First Amendment defense appears as to be a viable theory upon which framers may rely in future litigation — at least in the noncommercial arena.


Recommendations

So, is it OK to link?


Because courts have provided little in terms a definitive rule, framers and linkers do not have rules upon which to rely. The Shetland Times case was handed down by a court outside of the U.S., the Washington Post case was settled, and the Ticketmaster case is currently pending; simply stated, there is no answer. The Miller case suggests that where legislatures do attempt to pass laws, they be carefully written, for they are sure to face First Amendment challenges.


So far, linking without consent is presumed legal. But because there is little precedent in the area, a linker’s best bet is to take preventative measures, such as using a disclaimer. Where providing a link to another site, the linker should inform the viewer that he or she is jumping to a new location. It should state that the owner of the web site is in no way affiliated with the target site; such clarification can guard against viewer confusion. Or perhaps a site owner might implement a web linking agreement with a site designer wishing to link with him.


With advancements in technology, the target site owner could install newly available software, such as software available through Netscape. Such software enables the site designer to accept URL requests residing at a specific address. This gives the page owner control over his or her site.


All in all, site designers must be aware of the intellectual property liability they may face.



CONCLUSION


The linking practice is necessary, for it is essential to how the Web functions. There is a legitimate policy argument that linkers or framers are performing a public service by simplifying the methods by which users gather information. Again, there is no legal rule directly prohibiting the use of links or frames. Furthermore, copyright owners know how the Web works. In this sense, there is no expectation of privacy; a person opening up shop on the web expects and encourages people to enter. Passersby do not need permission of the shop owner to view the contents of a given site even though they are technically entering “private property.” Based on the current state of the law, it would be burdensome to require permission to simply link to other sites.


However, though there is nothing inherently wrong with linking practice, plaintiffs have so far proceeded with at least colorable claims of copyright and trademark infringement — especially when advertising dollars were the predominate issue. These indirect challenges have resulted in settlements where defendants have been forced to remove links or frames. As a result, a stigma has emerged. Some argue the stigma is justified; that by causing another loss of advertising revenue through linking practices linking the linker has done the “equivalent of climbing into the third floor rear window after the shop owner has locked the front door.” 75 But if the site does not adequately prevent deep linking, shouldn’t this be permissible? In addition to the First Amendment “right to hyperlink” argument, perhaps the linker could point out that the shop keeper, while locking the back door, left the front door wide open.


Practically speaking, is there really any danger that the original sites will disappear simply because advertisers will prefer the reference directory rather than the original source (at least in non-framing, simple linking contexts)? Is there anything illegal in placing references to similar sources in one place?


Or perhaps it is most beneficial to continue using indirect challenges through state laws rather than imposing direct limitations on linking practices. State and federal unfair competition laws are flexible, and perhaps should be applied until the technology comes out of its infancy stage.


The overwhelming majority of linking activity will not likely lead to litigation. Most organizations want to maximize exposure to their sites. Increased traffic leads to marketing opportunities, and it is well known that exposure leads to advertising dollars. Again, there are no definitive answers. But one safe prediction is that most future suits will involve money.


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©: 1998, Tanya E. Rose