April - 1999 - issue > Legal Advice

Linking and framing — two technologies that are widespread on the Internet – have caused quite a stir in the United States court system. Using links (which are sometimes referred to as “hyperlinks”) on a Web site is a core function that has shaped the Internet as it exists today. From one Web site, a user can magically jump to another Web site by clicking on a link on the first. In an electronic world based on the sharing of information, this practice seems natural, if not necessary. However, with the commercialization of the Internet and the paradigm shift towards revenue generation instead of information exchange, disputes regarding the uses and abuses of such links have found their way into more than one court in the United States.

Linking

So what are links and why are they causing such a stir? In technical terms, a link is a command in the programming of a Web page that tells the user’s browser to open the linked page of another site. Sometimes these links occur within the same Web page, and other times the link takes the user to an entirely new Web site. Most people do not understand why this practice would be the basis of a lawsuit. It seems logical that the owner of a linked page would be happy to have traffic or visitors directed to his/her site. However, the analysis is much more complicated than that.
A Web site often consists of multiple pages. When one site links to another, the referring site often links to a page other than the main or “home” page of the second site (sometimes referred to as “deep linking”). For example, one site may link to an article posted on another site which is not contained on the first page of that site but rather embedded somewhere within. By linking to this article and not to the home page, the referring Web site may be avoiding the initial pages of the linked site that contain advertisements or where the advertisements command a higher price (due to a higher “hit rate” on that page). In addition, depending on the context of the link and how a referring Web site uses them, an Internet user may be mislead into believing that the linked material belongs to or is otherwise affiliated with the referring site rather than the site which is linked. Unauthorized linking may also create a trademark infringement claim if the link itself uses someone else’s trademark or logo or is used in such a way that the link causes confusion as to the ownership or dilutes the distinctiveness of the trademark.

Framing Framing

“Framing” technology poses even more difficult issues by taking the linking process one step further. What is framing? In newer Web browsers, it is possible to program a Web site to contain multiple frames within one window. Each frame operates independently of the other. For example, a site can be programmed to have a frame running vertically along the left side of the page that contains the navigation for the entire site, with the content appearing on the right side of the page. As a user navigates the Web site with the left frame, the contents of the right frame change to display the appropriate information. Frames are also often used to create an advertising venue which continuously shows all of the banner advertisements for the site.

So why is the practice of framing triggering lawsuits? A Web site can link to another Web site and, rather than transporting the user to the new site, can display the linked site in a frame within the referring site’s page. By doing this, the referring site is able to supply content and information from a linked web site while at the same time maintaining control over the other frames (such as navigation and advertising).

Web site owners whose contents are framed have argued that they are being harmed for a variety of reasons. First, the framed site’s ability to generate advertising revenue may be diminished greatly, since the referring site’s advertisements can be displayed in frames surrounding the linked site’s page. Second, confusion, or “passing off,” that the content in the frame belongs to the referring site rather than the linked site is more likely. Third, the owner of the linked site may argue that the display of his/her page in a frame creates an unauthorized “derivative work” because the information on that page has been changed with framing of the the linked material. This constitutes a violation of the U.S. Copyright Act.

Two recent cases illustrate the potential issues associated with linking and framing. In TicketMaster v. Microsoft (C.D. Cal. 1997), Microsoft was sued by TicketMaster for linking to pages within TicketMaster’s Web site without TicketMaster’s authority. TicketMaster argued, among other things, that Microsoft did not link users to TicketMaster’s main page, but rather “deep linked” directly to content pages within TicketMaster’s site. The second case, The Washington Post Company, et al v. TotalNews, Inc., et al (S.D. N.Y. 1997), involved framing by TotalNews of the Washington Post’s Web site. TotalNews was in the business of supplying news content from multiple sources which were displayed within a frame on TotalNews’ site.

Look Before You Link

Both of these cases have settled and, therefore, have left no legal precedent for future cases. However, several practical lessons can be learned from them:

Consider negotiating a written agreement before framing or linking to the contents of a third party’s site;

When linking to a third party’s site, link to the home page;

Avoid using a third party’s logo or trademark as a link;

Make sure that linking to another site does not create confusion or imply that the linked material is owned or endorse by, or otherwise associated with, the referring site; and
Be flexible. As legal precedent develops in this area, parties may need to modify their linking and framing practices.

As the practice of linking and framing has become more widespread in Internet site architecture, the legality of these practices is likely to continue to be disputed. The utility and “user friendliness” of linking and framing will have to be weighed against the potential economic harm to the linked and framed sites, especially if the predominant method for generating income on Internet Web sites continues to be advertising. This is an issue that the Internet community will need to monitor very closely.