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Linking to Lawsuits
National Law Journal - August 16, 1999

Two things appear to be unique to the Internet: hyperlinking and framing Web sites. Both have sparked their fair share of litigation, usually brought under a mix of copyright, trademark, unfair-competition and contract law. It is interesting to see how traditional, real-world legal doctrines are applied to purely cybernetic phenomena.

Linking and framing create associations among Web sites. Linking, or hyperlinking (occasionally called crosslinking), consists of placing the address, in hypertext markup language (HTML), of one Web site on another site. This link allows the visitor to the first site to click on the address, or "hyperlink," and be directed to the second site.

Clicking on hyperlinks is the main way people travel around the World Wide Web, and it would at first appear that the more links one could place on a site, the better. Many sites are proud of the number of other sites that link to them, as this is a badge of quality: "Sites That Link To Our Site" is a frequently seen link in itself.

Additionally, measuring Web site traffic, or the number of visitors to a site, is an uncertain science at best. Being a much-linked-to site is a tangible measure of success and can directly affect the rates a Web site owner can charge advertisers that wish to display banners on a site.

Numerous challenges to linking practices

However, there have been numerous challenges to linking practices, mostly on copyright infringement grounds. Now many Web site owners seek permission before linking to another's site, and drafting link agreements has become a new legal subspecialty.

In late July, a lawsuit involving the breach of a linking agreement was filed in Philadelphia federal court by CDnow.com Inc. In CDnow.com Inc. v. Lycos Inc., No. 99-cv-3610, a music Web site alleges that a search engine, Lycos, and its subsidiary, Tripod.com, are not complying with the terms of a linking agreement that, the plaintiffs allege, requires the defendants to display direct links to CDnow's Web site and to block all links to CDnow's competitors.

The complaint alleges that a redesign of Lycos' Web site resulted in a burying of links to CDNow. An article about the suit is online.

Framing a site consists of blocking out its margins and replacing them with text from a different site, like changing the frame on a picture.

Because framing frequently blocks out advertising on the underlying site, protests (and lawsuits) came quickly. Technical fixes were developed to dissolve a frame, and they are now almost a standard aspect of Web site design.

But in turn, other software was developed to interfere with the frame-dissolving program, and then new code was written to block those programs, and so on--until the framers and the framed grew tired of painting over each other's graffiti.

The Link Controversy Page also contains information on framing disputes.

A recent Dutch decision involving hyperlinks has sparked concern in the United States and elsewhere. On June 9, in Scientology v. Spaink, No. 96/1048, the district court of the Hague held a Web site owner liable for contributory copyright infringement for linking to another Web site containing infringing material.

An English translation of the decision appears online. The decision is also in the original Dutch.

The Church of Scientology, known to be vigilant in defending the copyrights to materials written by Scientology founder L. Ron Hubbard, sued an Internet service provider (ISP) for not removing a link to an allegedly infringing Web site after the ISP had been informed that it was providing access to an infringing site.

The first finding that hyperlinks can infringe

The decision raised eyebrows in the United States and elsewhere, as it was the first time a court had ruled that a link itself, rather than the replication or copying of the protected material, constituted a copyright infringement.

The court treated the hyperlink as a reference, akin to a footnote, which the hosting site had generated and for which it was responsible.

Although the case is valid law only in the Netherlands, multinational publishers and businesses--and their counsel--may be concerned. Analogizing to reprinting footnotes, endnotes and headlines online, legal scholars wonder whether liability could accrue for reprinting notes or headlines as hypertext links.

The court did take pains to point out that the ISP had been notified that the material was infringing. In previous cases, ISPs had objected that even if they could examine every site to which they linked, they cannot know, merely by looking, if material infringes another's copyright.

But in this case, the Scientologists claimed, and the court found, that the ISP had posted the copyrighted materials online after a court in the United States had fined another individual for making the material available on the Web.

The court declared "that by having a link on their computer systems which, when activated, brings about a reproduction of the works that [the Church of Scientology] has the copyright to on the screen of the user, without the consent of the plaintiffs, the Service Providers are acting unlawfully if and insofar that they have been notified of this, and moreover the correctness of the notification of this fact cannot be reasonably doubted, and the Service Providers have then not proceeded to remove this link from their computer system at the earliest opportunity."

It is reasonable, the court continued, to impose "a certain degree of care" on the ISP regarding copyright infringement, as these businesses have the power to block access to the infringing site, or to remove the site entirely and inform the copyright holder when such an action was taken.

Finally, the court ruled that imposing liability for hyperlinks does not implicate freedom of expression.

The Dutch case is clearly distinct from the first court case to challenge hyperlinks. In Shetland Times Ltd. v. Dr. Jonathan Wills and Zetnews Ltd., 1997 F.S.R. 604 (Lord Hamilton, J.) (Oct. 24, 1996) (Ct. Sess., O.H., Scotland), a weekly Scottish newspaper, which appeared both in print and online, sought to permanently enjoin links to its site from a new, daily online competitor, The Shetland News.

The links consisted of headlines from the older, weekly newspaper. Clicking on the headlines from the Shetland News site led the visitor to the Shetland Times article, though not to the front page of the Times. The weekly challenged the links on trademark, copyright and unfair competition grounds.

Contrary to some newspaper reports, the Times was not challenging the right to link to its site, but rather the reprinting of its headlines and the bypassing of its front page, which displayed advertising.

After 13 months, the case settled. The hyperlinks are allowed, agreed the parties, provided the following conditions are met:

  • Each link to any individual story has to be acknowledged by the legend "A Shetland Times Story" underneath each headline. The legend has to be the same or a similar size as the headline.
  • Adjacent to any headline, there has to be a button showing the Shetland Times masthead logo.
  • The legend and the button must each be hypertext links to the Shetland Times online front page.

'Ticketmaster v. Microsoft' issues remain unsolved

One of the issues in the Scottish case, the right to "deep link"--that is, to link to an inside page of a site, bypassing the front page--rose to the surface again in 1997 and remains unresolved. In Ticketmaster Corp. v. Microsoft Corp., No. 97-3055 (C.D. Calif., filed April 29, 1997), Ticketmaster, the ticket-selling giant, sued Microsoft's online entertainment Web site, Sidewalk.

The latter service describes an event, such as a concert, and links directly to an internal page at the Ticketmaster site where the Web surfer can purchase tickets to the show. Ticketmaster sued over Sidewalk's deep-linking practice because its advertising is displayed on the front page of its site, and it wanted visitors to visit its front page and perhaps click on the advertising banners.

The case was unusual in that Paul Allen, a Microsoft co-founder, was also a major investor in Ticketmaster, and thus was on both sides of the case.

The litigation was also puzzling because the Microsoft Sidewalk site was providing a service to Ticketmaster: Microsoft could just have reviewed or promoted the events without linking to the ticket purchase site. Why would Ticketmaster protest the link? The case eventually settled without an opinion.

The issue of whether deep linking or hyperlinking can be barred is likely to resurface, and most likely in a case resembling CMG Worldwide Inc. v. American Legends (D. Ind., filed June 3, 1996), which was settled with no published opinion.

The Curtis Management Group, the licensees of James Dean's rights of publicity, sued the owners of the American Legends Web site for creating links to the official James Dean Web page. The plaintiffs, whose lawsuit alleged copyright infringement, defamation, unfair competition and conversion, claimed that the material on the defendants' page was disparaging in nature.

The defendants claimed that they were not disparaging the deceased actor on the site but were doing a favor to the official site by linking to it at all.

Issues surrounding "fan sites" are legion. Many sites display copyrighted photos, scripts, soundbites or studio trademarks. Some sites sell the unauthorized copyrighted material. Some sites display memorabilia legitimately purchased, or photos taken by the Web site owner. Angry letters sent to fans may backfire. Some fans with sophisticated Web sites are children.

The James Dean case settled.

Links to and from pornographic sites are also objectionable. Some porn sites link to any photograph of women posted online, including, in one instance, a photograph of an attorney on a law firm's Web site and, in another case, to a photo of a young, deceased woman featured on a memorial Web site posted by her parents. Letters from attorneys succeeded in getting the links removed.

As linking cases proliferate, so do jurisdictional issues. In Nottinghamshire County Council v. Gwatkin (Chancery Div., June 3, 1997), an English court issued an injunction prohibiting British Web sites from linking to Belgian and U.S. sites that mirrored, or copied, a site on which the Nottingham County Council had posted a report on allegations of child abuse. The council sought to suppress the republication of the report on copyright infringement grounds. But the U.S.-based operator of a mirror site refused to recognize the jurisdiction of the English court and insisted that the report, which did not name the children, was a public document that should not be suppressed.

Framing a Web site: Is it infringement?

Framing a Web site raises the question of whether the framing site infringes the framed site by creating an unauthorized derivative work of the original. In Futuredontics Inc. v. Applied Anagramic Inc., 1998 WL 417413, the U.S. Court of Appeals for the 9th Circuit upheld the denial of a preliminary injunction that would have barred the defendant from framing the plaintiff's Web site.

The plaintiff did not present any evidence of tangible or irreparable harm from the framing, the court found. Furthermore, the copyright cases cited by the plaintiff concerning derivative works were inapposite.

The other major case involving framing, in which advertising on the framed sites was blocked, was Washington Post v. TotalNEWS Inc., No. 97 Civ. 1190 (S.D.N.Y., filed Feb. 28, 1997). Many of the publishers' sites framed by the TotalNEWS site installed software to dissolve the frames, rendering the legal issue moot.

The case settled on June 5, 1997, when the framed sites agreed to allow TotalNEWS to link to their sites but not to obscure their content by framing them.

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This article is reprinted with permission from the August 16, 1999 edition of The National Law Journal. © 1999 NLP IP Company. LawNewsNetwork.com.


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