http://smallbusiness.findlaw.com
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http://smallbusiness.findlaw.com
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| Thursday, Jul. 24, 2008 |
Every website developer should know when using deep links, frames, and others' graphics is allowed, and when it can lead to trouble.
Using deep links, frames, and others' graphics on your site can make it appear more robust and provide a better user experience, but it may not please the affected website owners.
Linking is so fundamental to the functioning of the World Wide Web that many users feel that any legal restriction on their use of links is a violation of the right to travel and speak freely in cyberspace. But many businesses who don't want their valuable content associated with or connected to certain sites are far less enthusiastic about some aspects of linking. Here, we briefly discuss some of the legal principles that may limit the right to link.
Deep linking. Deep linking allows visitors to bypass information and advertisements at the home page and go directly to an internal page. As a result, linked-to sites can lose income, because their revenues are often tied to the number of viewers who pass through their home page. Some businesses also dislike the practice because it may mistakenly create the impression in a user's mind that the two linked sites endorse each other.
However, there is no law prohibiting deep linking, and no U.S. court has prohibited the practice. In one case decided in March 2000, a federal court ruled that the use of deep links did not violate copyright law. In this case, Tickets.com, an online ticket service, provided deep links to Ticketmaster pages to provide users with certain ticket purchases. Tickets.com prefaced the link by stating "These tickets are sold by another ticketing company. Although we can't sell them to you, the link above will take you directly to the other company's web site where you can purchase them." This disclaimer eliminated the claim of unfair competition as well, because there was no confusion as to the source of the ticket purchase. Ticketmaster Corp. v. Tickets.Com, Inc, 2000 US Dist. LEXIS 12987 (2000).
Trademark infringement and dilution. First the basics: A trademark is any name or graphic image that identifies and distinguishes products or services: a word such as "Kodak," a graphic image such as the "Ask Jeeves" butler, or a combination of elements such as the colors, lettering, and graphics used to distinguish Ebay.com from other online auction sites. Trademark infringement occurs when a second user's use of the trademark is likely to confuse consumers as to the origin of products or services.
The use of a graphic trademark -- for example, the Playboy bunny logo -- to link to the trademark owner's site is sometimes a risky proposition. Unlike the use of a simple word link, a consumer is more likely to be confused into believing that the linked site (the site that owns the graphical trademark) is associated with or endorses the site doing the linking.
Copyright infringement. Although it is not a violation of copyright law to create a hyperlink, it is a violation of the law to create a link that contributes to unauthorized copying of a copyrighted work if the linking party knew or had reason to know of the unauthorized copying and encouraged it.
"Framing" is the process of allowing a user to view the contents of one website while it is framed by information from another site, similar to the "picture-in-picture" feature offered on some televisions. Framing may trigger a dispute under copyright and trademark law theories, because a framed site arguably alters the appearance of the content and creates the impression that its owner endorses or voluntarily chooses to associate with the framer. In one case, TotalNEWS framed news content from media outlets such as CNN, USA Today, and Time. For example, the content of a CNN Web page appeared within a frame packed with advertising and information about TotalNEWS. The lawsuit settled, and TotalNEWS agreed to stop framing and to only use text-only links.
In a subsequent court fight involving two dental websites, Applied Anagramic, Inc. framed the content of a competing site. The frames included information about Applied Anagramic as well as its trademark and links to all of its Web pages. A district court ruled that the addition of the frame modified the appearance of the linked site and such modifications could, without authorization, amount to infringement. Futuredontics Inc. v. Applied Anagramic Inc., 1997 46 USPQ 2d 2005 (C.D. Calif. 1997).
"Inlining" is the process of displaying a graphic file on one website that originates at another. For example, inlining occurs if a user at site A can, without leaving site A, view a "cartoon of the day" featured on site B. IMG links -- a special type of link -- can be used to display graphic files on one site that are stored on another.
In one well-known episode, Dan Wallach, a fan of the Dilbert comic strip, did not like the design of the official Dilbert site owned by United Media and designed his own, The Dilbert Hack Page. He used IMG links to display the cartoon images from the United Media site so that a visitor to the Dilbert Hack Page viewed Dilbert cartoons (inlined from the United Media Page) within Wallach's "improved" page design. United Media demanded that Wallach stop, because the display violated copyright law and the process could destroy the integrity of the comic strip (if, for example, the strip were displayed at an adult or racist site). The parties avoided a lawsuit when Wallach agreed to drop the IMG links and replaced them with traditional hypertext links to the United Media home page.
Subsequently, in 2002, a federal court of appeals ruled that an image search engine violated copyright law when it used inline links to reproduce full-size photographic images. Smaller inlined "thumbnail" reproductions were permitted, however, based on fair use principles. Kelly v. Arriba Software, 280 F.3d 934 (9th Cir. 2002).
The simplest method of avoiding linking, framing, and inlining problems is to seek permission. As a general rule, permission is never required for a hyperlink to a site's home page that uses highlighted text (a text link). For example, highlighting the word "Yahoo!" as a link to the Yahoo! home page does not require authorization and will not cause a dispute. But, since the following types of links may cause disputes, it makes sense to ask for permission:
Once permission is obtained, you can sign a linking agreement. A linking agreement can be as informal as an email authorization stating, "You have permission to link to our website's home page using the words [insert the words in the link]."
If a website owner is concerned about liability for links but is unable to obtain, or unwilling to seek, permission from the linked site, a prominently placed disclaimer may reduce the likelihood of legal problems. A disclaimer is a statement denying an endorsement for or from another site or waiving liability for a potentially unauthorized activity. A disclaimer is rarely a cure-all for legal claims, but, if a disclaimer is prominently displayed and clearly written, a court may take it into consideration as a factor limiting damages.
In some cases, such as trademark disputes, it may help prevent any liability. For example, in a case involving a dispute between two websites for restaurants named "Blue Note," one factor that helped the lesser-known restaurant avoid liability was a prominently displayed disclaimer stating that it was not affiliated with the more-famous restaurant. Benusan Restaurant v. King, 937 F. Supp. 295 (S.D. NY 1996).
To minimize liability for any activities that occur when a visitor is taken to a linked website, a webmaster may want to include a linking disclaimer on its home page or on any pages with otherwise troublesome links.