Hyperlinks, Frames and Intellectual Property (1998)

Contents

Introduction

At the beginning of 1996, the Web browser Netscape released Navigator 2, which introduced frames to the World Wide Web. Frames allow Web authors to create Web pages that are divided into several smaller windows, or frames, when they appear on the user’s screen. Each frame is an independently scrollable region of the screen and because it is independent, information downloaded into a frame only fills up that frame and does not effect the content of any surrounding frames. Frames are now a common feature of Web sites and all major browsers can frame.

Hypertext links, or hyperlinks, are an essential feature of the Web allowing users to move directly from one Web page to another, regardless of the where the new page is located in the real world. Virtually all Web pages contain hyperlinks and when a user activates one of these links with a mouse click, their Web browsers automatically establishes contact with the Web page referred to by the link and creates a copy of the material it contains, which is then displayed on the users screen. If the link is contained in a site which does not use frames then the new Web page replaces the page containing the originating link. However, in the case of a site with frames, the new site will only be displayed within the frame containing the originating link.

This paper is concerned with how the use of hyperlinks and frames by a Web site to present material from another Web site may infringe the rights of the originator Web site(s).

Within the Internet/legal industry most discussion of the issue has concerned the way framing sites use material from sites they wish to link with, and how this may infringe copyright. The framing site has to use the other site’s URL to establish a link, and in some cases the hyperlinks themselves consist of the name or logo of the other organisation, or specific pieces of identifying text from the other site, such as newspaper headlines. Since the potential for action based on infringement of copyright in an Internet context appears to be limited in many countries, legal writers and practitioners are widening their scope to include issues such as fair trading and trademark dilution in an effort to protect the property and rights of Web site owners.

Intellectual Property in Cyberspace

The World Wide Web is a new medium for publishing and disseminating information where the rules and conventions governing behaviour are still evolving. Linking a site in one country to a site in another, crossing territorial and judicial boundaries in the process, is a common occurrence. Protection of Intellectual Property rights in this new global environment is in a state of flux, although the Berne Convention and more recently the TRIPS (Trade Related Aspects of Intellectual Property) initiative administered by the World Trade Organisation address many of the key issues.

Technological advances are expanding the potential of this new medium at a rapid rate, but are also moving it further and further away from its real-world counterparts which have been the basis for most Intellectual Property law. To date, I am not aware of any reported legal decisions concerning the use of hyperlinks and frames. The issues involved however, have been central to a number of recent cases, which have either been settled out of court or are still proceeding. Several of these cases are considered below, and while most of the action has been in the United States, the first significant case to address this question emanated from Scotland.

The Shetland News

In 1996, The Shetland Times, a Scottish newspaper which publishes local, national and international news in both print and on its Web site took action against The Shetland News, an Internet newspaper, which also originates in Scotland. The later site contained a number of Shetland Times headlines which served as hyperlinks to articles on different Shetland Times Web pages. These hyperlinks provided direct access to each article, allowing the user to by pass the Shetland Times homepage. Hyperlinks such as these are often referred to as “deep” hyperlinks.

The managing director of The Shetland Times, Robert Wishart, maintained that by “incorporating our copyright material into their Internet news service, The Shetland News had infringed copyright”. Also, since The Shetland Times planned to use advertising on their homepage, the use of deep hyperlinks by the defendants, meant that such advertising would not be seen by visitors arriving through the defendants’ site resulting in a possible loss of revenue.

In the Scottish court on 24 October 1996, Lord Hamilton granted an Interim Interdict preventing the Shetland News from continuing to provide links to the Shetland Times Web site. At the time he stated that it was crucial that all access to material on the plaintiffs’ Web site should be obtained exclusively through their homepage. While the granting this order may suggest that Lord Hamilton felt that the use of deep hyperlinking could present a problem, it is important to note that the issue was never resolved in court.

In an online article, “Copyright Battles: The Shetlands”, the British legal writer Charles Oppenheim, counteracts what he believes was an over reaction to the granting of this interim interdict. In the view of Oppenheim any talk of the decision meaning the death of the Web is “Nonsense, the court did not consider the rights and wrongs of the case in terms of matters of law.”

Oppenheim argues that in terms of copyright law “… even storing the text of material temporarily on a hard disk is, technically, infringement.” But goes on to point out that for an infringement to be proved the material in question must be a “Literary Work”, as defined, and that none of the standard user permissions applied. He offers the opinion that use of the URL and the article headlines that were copied in this case was unlikely to be an infringement of copyright.

Furthermore, Oppenheim argues, that the “reporting of current events” by newspapers is fair dealing and that on the Web there is an implied licence to copy. “When someone opens a public WWW site, they must expect people to put links into their site, and for them to put links to other sites. The system was designed to work like this.”

On 11 November 1996, the plaintiffs and the defendants agreed to an out-of-court settlement, which allowed the Shetland News to continue linking to stories on The Shetland Times web site, but under certain conditions. Most significantly, The Shetland Times had to be prominently acknowledged as the source of the story. Deep linking however, could still be used, bypassing The Shetland Times homepage.

Mr Oppenheim believes that it is unlikely the Shetland Times would have been successful had the case gone to court. In his view, “… the defendants (would) have a 99.999% chance of winning their case.”

Total News

Total News is an Internet news site emanating from the USA, which contains links to a wide variety of news sources. The Web site is divided up into four independent frames.

A side frame contains a list of news gathering organisations, with each name acting as a hyperlink to the corresponding Web site. At the bottom of the screen there are frames containing the Total News logo and advertisements. The largest frame, which is in the centre of the screen, is the news window. By clicking on the name of a news source in the side frame, the content of that site is displayed in the news window. Importantly however, this material is adjacent to advertisements sold by Total News and the URL displayed is not the URL of the news source but the Total News URL.

In February 1997 a group of the news organisations featured on the Total News Web site, including the Washington Post, CNN and Reuters, filed a complaint against Total News Inc. There were nine claims including, misappropriation, trademark infringement, dilution of trademark, false advertising, unfair competition and tortious interference. The plaintiffs also maintain that by using hyperlinks to embed copyrighted material within its news frame, Total News is liable for copyright infringement.

The Total News case has been featured in several New York Law Journal articles. “Framing: Internet Equivalent to Pirating” by Alan Hartnick, for example, provides a good overview of the issues involved, but was written prior to the eventually out-of-court settlement. The article points out that the plaintiffs were not objecting to linking per se, but only to the partial linking that resulted from the use of frames by Total News, “… the implied licence to link does not permit any right to alter.”

Hartnick also looks at the question of misappropriation and how it intersects with copyright law in the United States. “Plaintiffs’ misappropriation complaint is that the defendants’ advertiser-supported “hot news” web site openly free-rides on plaintiffs’ efforts by simply lifting plaintiffs’ content wholesale and selling advertising based on proximity to that content.”

In considering the misappropriation claim, Hartnick draws an earlier, non-internet case, NBA v. Motorola , which concerned the real-time provision of “hot news” items, namely information on NBA games in progress. In this case Judge Winter found that there was no “free-riding” by Motorola in the collection and transmission of factual information.

In another New York Law Journal article, “Frame Liability Clouds the Internet’s Future”, the authors Kenneth Freeling and Joseph Levi consider both direct and contributory infringement of copyright in the Total News case. They maintain that a hyperlink merely directs the user to the address of another document on the Web and does not copy or modify the material itself. As a result the link provider “… should not be subject to direct copyright infringement liability.”

Although the link provider is facilitating the copying of the material by the user, in the view of Freeling and Levi the link provider is also not liable for contributory infringement, since the user has an implied right to view copyrighted material on the Web. Also, the doctrine of fair use would probably protect the user who downloads a Web page, since in the first instance the copy is not made for a commercial purpose, but to enable to the user to read the material contained on the Web page.

However, when it comes to the use of hyperlinks that are embedded within frames, the authors suggest that link providers may “… find it more difficult to defend against charges of infringement.” Although this is the situation with the Total News cases, the authors believe that by applying the same arguments as used in the non-frame situation, Total News is unlikely to be liable for either direct or contributory infringement of copyright.

The Total News case was dismissed on June 5, 1997 following an out of court settlement between the parties, which allows Total News to continue providing links to the Web pages of news organisations, but not within a frame. Also, the hyperlinks must be in plain text and can not include logos of the organisations. Total News continues to provide an Internet news service in much the same way as before this case, however, links to the organisations that took the action are no longer included on the Total News Web site.

Jeffery Kuester and Peter Nieves from the Franklin Pierce Law Center in the US provide a good summary of the case in Hyperlinks, Frames and Meta-Tags: An Intellectual Property Analysis”. In this article, which was written after a settlement had been reached, the authors provide an interesting view of the outcome. “While being far from conclusive, this settlement could suggest that hyperlinking in a framed arrangement could be actionable under at least one of the legal claims asserted in the Total News Compliant.”

Ticketmaster

“Hyperlinks, Frames and Meta-Tags: An Intellectual Property Analysis” by Jeffery Kuester and Peter Nieves offers an extensive overview of the main issues from an American Perspective. One of the hyperlink cases considered by the authors concerns a complaint filed by Ticketmaster against Microsoft in 1998 for improper use of Ticketmaster’s name and logo on a Microsoft Web site, “Seattle Sidewalk”.

Ticketmaster provides computerised ticket distribution services for producers and promoters of entertainment and sporting events. They maintain over 2,000 remote ticketing outlets and 16 phone centres in the US. They also have a prominent web site, but the link from “Seattle Sidewalk” bypassed the home page of this site, taking visitors directly to Ticketmaster’s event listings to purchase tickets.

Prior to the action by Ticketmaster, Microsoft had been negotiating to include links on the Sidewalk site to the Ticketmaster site. In the view of Kuester and Nieves this suggests that Microsoft may have been “… concerned about the legal basis for their intentions.” When negotiations broke down however, Microsoft established the links anyway. The authors also point out that a move by Ticketmaster to file an Amended Complaint that specifically addressed “deep” linking, suggests “… Ticketmaster suspects that merely linking to a homepage may not be actionable”.

The Amended Complaint by Ticketmaster states, “Some of Seattle Sidewalk’s links have circumvented the beginning pages of Ticketmaster’s Web site, which display advertisements, products and services of entities with which Ticketmaster contracts, and have linked directly to subsidiary pages of the Web site.”

Furthermore, Ticketmaster maintains, that the action by Microsoft amounts to the misappropriation of Ticketmaster’s property for the commercial use and gain by Microsoft. In addition, this unlawful use is diluting Ticketmaster’s name and trademark, and reducing the potential of the Ticketmaster site to generate advertising revenue.

Microsoft has responded to these claims and has also filed a counterclaim for a declaratory judgement seeking a determination on the legality of hyperlinking. In the view of Kuester and Nieves, “This counterclaim seems to place a large and realistic burden on the court since, according to the counterclaim, failing to recognise Microsoft’s use of hyperlinks as lawful would tend to place a stigma on hyperlinks in general and on their legality.”

Although the Ticketmaster v. Microsoft case is still to be resolved, the preliminary manoeuvres tend to suggest that both parties probably find hyperlinking acceptable, but are in considerable doubt about the use of deep hyperlinks.

Fort Wayne

An article, “Lawsuit May Determine Whether Framing is Thieving” by Carl Kaplan in the New York Times’ Cyber Law Journal, features a more recent case involving two newspapers and a community Web site in the Midwestern town of Fort Wayne.

The newspapers, The Journal Gazette and The News-Sentinel, allege Ft-Wayne.com, linked to newspaper articles in an improper way. Specifically they were concerned about three issues which are common to a number of other cases. The newspapers maintain that when the articles were presented within the Ft-Wayne frame they did not appear as they would had the reader reached the newspaper sites directly, also the articles were surrounded by the Ft-Wayne logo, URL and advertising, and finally, by displaying the articles in this way the site creates an impression there is a relationship between it and the newspapers.

A lawyer for the plaintiffs, D. Randall Brown, said his clients did not object to the newspaper sites being linked to by any other Web site, but did object to the practice of framing. In essence, the framer “… rides on the coattails of the newspaper’s reporters and editors”. And, is ‘looting’ the property of the newspapers. The action by the newspapers extends beyond the Web site and its proprietor to include the developer of the site and the Internet Service Provider.

Ft-Wayne.com maintains it is providing a free community service through its Web site and stopped framing the day after the lawsuit was filed as a demonstration of its goodwill. The plaintiffs however, appear determined to continue with their action and so this case may ultimately provide a decision by a US court on the legality of framing.

Conclusions

The Internet and World Wide Web present us with a new publishing and marketing paradigm. The use of hyperlinks and frames enables a Web site developed and ‘housed’ in one country, to incorporate material from other Web pages into its display and simultaneously present those materials as its own to a global market.

While many Web site proprietors are happy with this situation, and hyperlinking could be fairly considered to be an essential feature of the Web, the lack of any clear legal guidelines has resulted in allegations of online ‘looting’ or ‘pirating’ by some Web proprietors.

In general, copyright law in common law countries like Australia, are primarily concerned with protecting the economic interests of the copyright owner, often the originator of a work. In essence, these laws help ensure that the originator of a work is rewarded for their efforts, thereby creating an environment which is conducive to the exploration of ideas and the development of new works.

The Web however, has the potential to undermine this situation. It transcends national boundaries and is relatively anonymous. Web sites can be developed and presented to a global market quickly and cheaply with very few restraints, and the technology of framing enables the easy and seamless incorporation of material from other Web pages. Furthermore, since no courts anywhere in the world have made any significant decisions on these matters, there are no real guide lines as to what is acceptable behaviour.

In the view of some Internet and legal writers, the answer for copyright owners worried that their material will be copied on the Web is simple: Don’t put the material up on the Web. While this attitude may have been adequate when the Web was a fringe activity, it can no longer be the case, the Web is now a major means of disseminating information with significant economic power.

While recognising the new culture that is emerging among Internet and Web users, I believe that site owners who prepare new material for publication on the Web need to be able to protect their material. Without this protection it will be hard for them to exploit the full economic potential of their material and the incentive to produce new material for the Web will be reduced leading eventually to a decline in the quality and quantity of new link targets.

The articles and cases considered in this paper outline the increasing concern some Web proprietors have with the use of frames, and suggest that those wishing to protect their material from exploitation by others will find little help in copyright law. Instead, as indicated, they are seeking legal protection through other means, such as national laws concerning fair trading, misappropriation, passing off and trade mark protection.

References

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