Legal Issues on the Internet
Hyperlinking and Framing
Maureen A. O'Rourke
Associate Professor of Law
Boston University School of Law
This story is abstracted from Maureen A. O'Rourke, Fencing Cyberspace: Drawing Borders in a Virtual World, 82 Minn. L. Rev. 609 (1998). 
As the Internet has continued its emergence from a research network to a largely for-profit enterprise, commercial owners of World Wide Web (web) sites have concentrated much of their efforts on searching for revenue models that allow them to profit from Internet dealings. This commercialization of the Internet has raised challenges for the law in at least two ways. First, the search for a profit-generating revenue model has challenged the customs or "netiquette" that effectively ruled the Internet when it was dedicated to research. The question for the law is whether those customs should constitute the legal rule in a commercial environment. For example, the web was built for the purpose of enabling hypertext capabilities, allowing one site to hyperlink (link) to and access another. In this way, users could make sense of the great mass of data contained on the Internet. Linking was both accepted and encouraged when the Internet was a research network. However, on the commercial Internet, some site owners have contended that before employing a link, the linking site must seek permission from the web site to which it wishes to link. The legal response to this question can be helpfully informed by reference to the netiquette of linking interpreted in light of legal principles which predate the Internet's inception.
The second challenge to the law lacks a similar frame of reference to netiquette. As new technologies have emerged allowing even more manipulation of data than that anticipated when the Internet was established, commercial site owners have attempted to limit the use of such technologies by others, particularly when such use impacts revenue. The issue for the law in this context is how to address this new conduct without any guidance from netiquette and under legal principles designed for a physical rather than cyber world. For example, technology that allows framing of other sites is a relatively recent innovation, lacking any established netiquette to provide some insight in conducting the legal analysis. A number of commercial site owners have objected to the framing of their sites, contending that such framing effectively misappropriates their content. The question for the law in this context is how to apply longstanding principles of copyright, trademark and common law unfair competition law to this new practice.
The legal answer is by no means clear and commentators hold widely diverging opinions. It is likely also that different courts will arrive at different results. It will probably be some time before the law is unified, offering consistent, predictable solutions.
This column, then, presents one view of the law and argues that although the question is a close one, copyright law generally allows linking without permission. However, trademark law may limit the manner in which the link may be displayed. It also argues that copyright law allows framing but that if a particular use of a frame confuses consumers as to the source of the information, framing may implicate trademark concerns. Finally, it argues that a recent Second Circuit opinion, if adopted by other courts, will severely limit the utility of common law unfair competition claims involving Internet-based conduct
Historically, sites have welcomed links from others. To date, web site owners have made money primarily from the sale of advertising at their sites. The advertising rate is set by the number of people who travel to the site. From a revenue perspective then, web site owners are indifferent as to how a person accesses the site -- whether directly or by linking to it from another site. Both types of access record the desired "hits" to the site that can increase advertising revenue. The conventional view then has held that sites welcome linking from others because it increases traffic, advertising rates, and, by inference, revenue.
Recently, however, certain sites have challenged the practice of linking without first seeking permission. In the widely publicized Ticketmaster Corp. v. Microsoft Corp. case, Ticketmaster sued Microsoft for linking to its site without permission. In particular, Ticketmaster objected to Microsoft's practice of linking deep within its site rather than to the home page, and claimed, among other things, that Microsoft effectively diverted advertising dollars that otherwise would have gone to Ticketmaster. Interestingly, the complaint was based primarily on trademark law rather than copyright, as the copyright infringement claim appeared almost as an afterthought.
The impetus for the suit was probably primarily economic. By linking deep within the site, Microsoft bypassed Ticketmaster's home page which contains advertising. As a result, no "hit" to the home page was recorded, potentially decreasing Ticketmaster's revenue. Also, Ticketmaster had set up contractual arrangements with other firms in which those companies had agreed to pay to link to the Ticketmaster site. Free linking by Microsoft could devalue those relationships. Finally, Ticketmaster had agreed to give MasterCard prominence at the Ticketmaster site. Microsoft's bypassing of the home page threatened the ability of Ticketmaster to comply with that agreement. The free link of Microsoft then seems facially to be invidious; allowing such a free link undercuts Ticketmaster's flexibility both in designing its site and in its marketing efforts with other sites.
However, under the copyright law, the user's act of linking is unlikely to constitute infringement because it is probably protected either by an implied license or under the copyright doctrine of fair use. Because the user's act would not be infringing, the party -- here, Microsoft -- who enables the user to link, could not be guilty of contributory infringement. This result may seem incongruous in light of the objections detailed above. However, countervailing policy considerations including netiquette, the site owner's ability to combat unwanted linking technologically, and the First Amendment interest in maintaining the free flow of ideas and information on the Internet support this result.
Trademark law, however, may place limits on linking. The gravamen of Ticketmaster's trademark complaint is that a link implies an association between the linking and linked sites. When such an association is lacking, the link could constitute trademark infringement, dilution and/or unfair competition under the Lanham Act. However, consumer expectations are generally relevant in trademark cases. Most users are unlikely to assume an affiliation between the two sites, particularly since the user leaves the linking site and travels to the linked site, understanding that it is at a new web location. Users' expectations may be influenced, in part, by the manner in which the trademark is used. If the linking site uses the linked site's fanciful logo as its pointer, consumers are more likely to believe that there is an association than if the linking site uses the address or name of the linked site as its pointer.
Linking then, in the absence of other wrongful conduct, is unlikely to constitute either copyright or trademark infringement. However, if a site were to imply an association with the linked site expressly or implicitly through the manner in which it uses the trademark, it may be liable under the Lanham Act.
Unlike linking, framing is a relatively recent phenomenon, introduced by Netscape in Version 2 of its Navigator product. A framing site, by virtue of certain commands in its HTML code, links to another site, displaying that site within a window or frame. The frame itself is comprised of content from the framing site. In contrast to generic hyperlinking, in the case of framing, the user remains at the framing site and views content from both sites. The address that the user's browser displays may continue to be that of the framing site. The user may be unaware that the content in the frame comes from another site. This difference between linking and framing may make trademark liability more likely for sites that frame rather than merely hyperlink.
Sites are increasingly challenging those who frame them. Probably the most widely publicized challenge was that brought by a group of plaintiffs led by The Washington Post against Total News, Inc. The plaintiffs objected to the Total News site's framing of their content. Total News would surround the content of the plaintiffs' sites with ads that Total News itself had sold. Plaintiffs argued that Total News had infringed their copyrights and trademarks, diluted their trademarks and engaged in unfair competition both under the Lanham Act and at common law.
Again, the impetus for the suit was probably economic. Total News was able to frame the sites in such a way that it looked as if Total News' advertisers were actually advertising on the framed sites themselves. Advertising revenue was thus diverted from the framed sites to Total News. Moreover, because the address of the Total News site continued to be displayed on the screen, it also looked as if Total News were the source of even the content displayed in the frame.
However, copyright law is unlikely to be implicated in the act of framing, although again, it is a close question. Arguably, none of the exclusive copyright rights are implicated by the frame as it is simply a method of display. The frame though, might implicate the copyright owner's exclusive right to prepare derivative works. In refusing to dismiss a complaint that framing constituted copyright infringement, Judge Audrey Collins noted that existing precedent does not conclusively decide the issue of whether the use of a frame constitutes creation of a derivative work. (See Futuredontics Inc. v. Applied Anagramic Inc. (No. CV-97-6691 ABC (MANx, C.D. Calif.)).
Even if the framing site were considered a derivative work of the framed site, the creator of the framing site may still not be liable for copyright infringement. The user actually does the framing and the user's conduct is likely to be protected under the copyright doctrine of fair use. As in the case of linking, if the user is not a direct infringer then the site that provides the ability to frame cannot be a contributory infringer.
However, many cases that involve framing are likely to implicate trademark concerns. The continuing display of the address of the framing site may confuse users as to origin, a traditional concern of trademark law. Surrounding the framed site with content from the framing site may likewise confuse users as to origin. A line of cases in trademark law on the repackaging of trademarked goods also offers support for the contention that framing may violate trademark law.
Framing thus is less likely to survive legal challenge than generic hyperlinking. While it may or may not give rise to copyright liability, it is quite likely to run afoul of the trademark laws.
The failure of existing law to address the practices in which parties engage by using previously unknown technology may lead many plaintiffs to place less reliance on statutory causes of action in copyright and trademark and more on the common law tort of unfair competition. Unfair competition is a more malleable cause of action than either copyright or trademark infringement, since, as its name suggests, it can address a wide range of conduct. However, a recent Second Circuit decision may have significantly limited its viability, at least with respect to claims of misappropriation, the essence of unfair competition claims based on hyperlinking and framing.
In NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), the Second Circuit narrowly defined the contours of a common law unfair competition claim of misappropriation that would survive a copyright preemption analysis. The court seemed to indicate that a misappropriation claim is not preempted only if the particular information is time-sensitive, the defendant free-rides on the plaintiff's efforts and that free-riding, if it were to become widespread, would threaten the very existence of plaintiff's product. In a world like the Internet that is characterized by relatively low costs, this latter element may be quite difficult to prove. If other courts adopt the Second Circuit's approach, plaintiffs may not be successful in challenging hyperlinking or framing as misappropriation. Even in a jurisdiction that does not adopt Motorola, plaintiffs may find their unfair competition claims preempted under a conventional analysis under section 301 of the Copyright Act, as the conduct involved in hyperlinking and framing implicates copyright-type rights.
Hyperlinking and framing are just two of the Internet practices which plaintiffs are challenging. Neither is clearly illegal under existing legal doctrine, nor is it clear that either should be. The uncertainty of the current public law of copyright and trademark may lead parties to seek redress under the private law of tort. If misappropriation claims are unsuccessful under a Second Circuit view of the world, plaintiffs might try to use a cause of action like trespass to limit unauthorized access. Additionally, parties may attempt to order their relationships using the private law of contract to set the terms of access and use of a site. Thus, even if hyperlinking and framing were to survive challenges under the intellectual property statutes, they may be actionable under private law. However, as the Second Circuit's opinion reminds potential litigants, private causes of action may be preempted by the public intellectual property law. Thus, the question of the relationship between the public and private law is likely to play an important role in deciding the shape of the Internet, regardless of whether the particular conduct involved is hyperlinking, framing, or some technology not yet developed.
Copyright © Maureen A. O'Rourke 1998
1This article should not be interpreted as legal advice or a legal opinion. Readers should not act or rely on the arguments expressed in this article without first seeking the advice of a licensed attorney. All remarks, opinions, and interpretations are those of the Author and do not necessarily represent those of D-Lib Magazine, CNRI, or the Government. See D-Lib and D-Lib Magazine Access Terms and Conditions.
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