SECOND INTERNATIONAL HARVARD CONFERENCE ON INTERNET & SOCIETY  may 26-29, 1998

Framing, Linking and Packaging: Who Deserves What? by Michelle Spaulding As the Internet goes through the growing pains inherent in its developmental processes, those who live, work, and play there shape that development through daily actions. In the area of intellectual property, actors (and reactors) have struggled to apply existing laws and legal concepts to new and unprecedented situations, and often find an uneasy fit. The panel "Control over Framing, Linking and Packaging: Who Deserves What?" will attempt to explore a current area of unrest: namely, what happens when one actor utilizes Internet technology to allow visitors at one site to access information from another site, developed by another actor. The two most common ways to do this are to link to the other site (when a user clicks on a selected area, she "jumps" to the other site) or to frame the second site within the first. There have been two celebrated linking cases, Ticketmaster Corp. v. Microsoft Corp. [CV 97-3055 RAP (C.D. Cal., filed April 28, 1997)], and Shetland Times Ltd. v. Dr. Jonathan Willis and Zetnews Ltd., Scotland Court of Sessions (Oct. 24, 1996), both of which dealt with the problems associated with "deep linking" (where the link takes a user to a page other than the second site's home page). Both cases were settled before trial. Various links to references exploring these issues and these cases are provided at the end of this introduction. The Washington Post Co., et al. v. TotalNEWS, Inc., 97 Civ. 1190 (S.D.N.Y., filed Feb. 2, 1997, settled June 5, 1997) has been the case of notoriety as regards framing. As an introduction to what framing is all about (from one insider's perspective), and the TotalNEWS case in particular, we are providing here a brief interview with Mr. Roman Godzich, president of TotalNEWS, Inc. Following the interview are links to references that further explore the TotalNEWS case, as well as provide different perspectives on the issue of linking and framing. Roman Godzich, an Arizona resident is president of TotalNEWS Inc.. TotalNEWS is a small company dedicated to offering Internet users the possibility of comparing different sources of information as it relates to news. Roman has been working on-line for more than ten years. He began by developing on-line commerce applications for the French Minitel system. MS: Let's start off with some background. What was the TotalNEWS case all about? Where did you come up with the idea to frame other news sites and when did you first realize that some of the "framees" weren't happy about it? RG: The TotalNEWS case was about the freedom to link from one site to another. Much has been written about the issue of framing (I'll explain what that technology is further on). TotalNEWS launched its site (http://totalnews.com) in October '96. The goal of the site is to establish a place where Internet users can easily compare a variety of news sources on any given subject. The site links to over 1200 different news sources and now includes a news search engine that is updated every two hours and allows one to find current news stories based on the keywords they enter. TotalNEWS also uses the site as a showcase for the variety of data gathering products that it markets. In December '96 we received a letter from an in-house counsel at CNN addressed to the "TotalNews Network". At that time we had established a series of graphical links to some of the major news sources by using resized versions of their logos. This use of logos is found just about everywhere on the World Wide Web. The letter complained of our use of their logo and requested that we refrain from such. It also requested that we cease and desist from linking to their site in any way shape or form. We felt that this was well beyond the bounds of any copyright concern. We redesigned our site to remove the graphical links and replaced them with buttons that simply had the names of the news sources on text. We were contacted by USA Today who told us that they had invested a great deal of money in the design and promotion of their logo and could we please use that instead of just plain text as a link to their site. In a letter from our attorneys, Parker, Farringer, Parker, we responded to CNN stating that we had understood their concerns over their logo and had removed it from our site. We had also included a separate page that informed the user, when they clicked on CNN, that they were going to another site that had no relationship whatsoever with TotalNEWS and we offered the user the choice of continuing on or not going to the CNN site. They responded stating that this was insufficient and that they would bring a lawsuit to bear if we continued to link to their site. In the meantime, CNN had applied a piece of javascript in order make their site "jump out" of frames on their own. We discovered that when they employed this piece of javascript, the back button of the browser ceased to function properly. What happened is that it would return the user to the previous page and then jump the user to CNN, no matter where the user was coming from. Well, we got our keyboards and wrote a small piece of javascript such that when someone clicked on CNN.com from our site, the user went to the CNN site as they would in any normal circumstance, what we added was the opening of a secondary browser window (not a frame, but a separate application) that was a 2" x 2" window stating "back to TotalNEWS". The next thing we new was that our law firm was contacted by Mr. Bruce Keller of Debevoise and Plimpton who said he was representing not only CNN but also Reuters, TIME Inc., The Washington Post, Times Mirror and Dow Jones. He said that if we didn't comply with CNN's request we would find ourselves in a lawsuit. We met with our lawyers and explained to them why linking is not a violation of any sort and explained how framing doesn't involve any copying or republishing and why we were opposed to being "bullied" in this manner by an unprecedented gathering of media companies better known for their enmity between them. Our lawyers discussed this with Mr. Keller, explaining to him why there was no copyright violation going on (one can hardly violate copyright without copying). On a Friday in February, we received a call from a journalist at PCWeek who was writing a story on this issue and wanted our comments as to the lawsuit that had been filed against us. We responded, "What lawsuit?" He told us that he had a copy of a complaint filed in NY against TotalNEWS by what has since been called on the Net "the Gang of Six". We were not served that complaint until five days later. In the mean time we had decided to put out a press release entitled "Internet Bullies" in which we explained our position that this issue was indeed an odd situation. When we were served the complaint, we discovered that the issues within it were not the same as those that we had been discussing. Instead, the issue of framing now seemed to be a major one. The complaint was full of misinformation. It complained that the sites were not being seen as they were intended. Anyone with a modicum of understanding as to how a graphical user interface (MAC Screen or MS Windows environment) works, knows that it is the user's choice to resize the screen at the user's whim. Yet the complaint singled out the issue that the sites in question were being obfuscated. When a site appears in a window or a frame and the contents exceed the boundaries of that window or frame, a scroll bar appears to one side that allows the user to scroll through the contents. It seemed to us as if this function of today's desktop computer was what was being complained about. As we read through it, we recognized that (although this had never been previously mentioned) that the true issue at hand was our advertising banner and that was why they were concerned about framing. The reason that someone would use TotalNEWS is because they find that the added navigational features and the ease of comparison that TotalNEWS offers makes it a site worth visiting. Our user demographics tell us that many find this so. When TotalNEWS sells its advertising space, it is no different than when an appliance store puts up a big sign in their window proclaiming "Toshiba is the Best" while there are three RCA televisions displaying different TV shows in that window. The consumer is still the one who will make the choice of which television to buy and the store is allowed to put up whatever advertising it deems fit. To insinuate that this is unfair competition is rather absurd. Since the complaint had been filed in NY, we retained the services of Peter Jakab of Fein and Jakab in that city. Mr. Jakab has a keen understanding of the way Internet technology works. His ability to explain to us the various aspects of IP law coupled with his quick grasp of the technology made him an invaluable assistant in our endeavor to express ourselves in this matter. In March of 1997, TotalNEWS signed an agreement in order to enter into settlement negotiations with the plaintiffs. That agreement stipulated that we cannot discuss what went on in the negotiations. I have often regretted signing that agreement because I am now unable to explain my full position on all the events that took place. Nevertheless, I will stand by that agreement. On June 5, 1997 it was announced in a joint press release that we had settled with the plaintiffs. We had agreed in the settlement to no longer frame their sites. We were also given a revocable "linking license" at no cost. We included paragraphs that it was an affirmative defense that such licenses were not necessary. A URL or website's address is no different than a telephone number (it is indeed simply a number, an Internet protocol address). Is a license necessary to forward a telephone call or to offer a directory of telephone numbers? The idea of "linking licenses" is anathema to the Internet and its way of functioning. No search engine or directory could exist if such linking licenses were prevalent. If a story on tobacco in CNN.com wished to link to an R.J. Reynolds site, they might have to procure a license in order to link to it. I believe that linking within the HTML environment is an exhibition of free speech. It is no different than pointing to someone and pronouncing their name. The reason that TotalNEWS settled its suit is that we didn't have the funds to defend ourselves properly. We found ourselves facing six of the world's largest media firms represented by a very large and resource-filled law firm. We were certain that even if we had been able to go through the process and win our case, these companies would wear our financial resources away with multiple filings and appeals. We had two major goals: the first was the survival of TotalNEWS as a company and a service to its users. Today, we have more users than ever. The second was to avoid having a legal precedent set when the financial resources had built such an unequal footing. We believe that we met both of these goals well. MS: You've said somewhere else that many people don't understand the technology involved in linking and framing. Do you think that, if they did, those who now denounce the practice would see it differently? For those who don't understand, could you explain how the technology works? RG: Some who do not now understand it would see it differently. Some would not change their opinion because the opinion they have has nothing to do with the technology. Framing does not involve copying. When a site frames another site, all it is doing is connecting the user to that other site, without modifying, republishing, or altering the contents of the other site in any way. What framing does is offer a separate part of the screen within which that site is seen. If you use Microsoft's Internet Explorer 4.0 and click on the search button, a list of search engines appears in a left-hand frame. You then choose which of this list you wish to query. The results show up in the right-hand frame. This allows you to easily compare the qualities and presentations of the different search engines. What Microsoft has done here is create an environment. The user benefits and the sites benefit from the traffic. This is exactly the same situation when a site is viewed within a frame at TotalNEWS. We have "de-framed" a number of sites who have asked us to do so. Conversely, there are sites that have asked us to use a specific page within their site as a starting point (particularly if that page may be more suited to a frames environment). As I have said before, frames was not the issue. The issue was linking. If framing had been the issue, the CNN would have been happy with their javascript solution to "jump out" of frames. If framing had been the issue, where did the "linking licenses" come from? As to how links work, the technology could best be compared to speed dialing on your telephone. In fact directory sites such as TotalNEWS, Yahoo or Looksmart could be compared to having a plug-in into your telephone that gives you a list of speed-dialed numbers to a variety of resources. If you had such a product on your telephone, there would probably be advertising all over it and you might even have people paying to have their number included in the directory. Do you think you would get sued because you listed someone's phone number without a license? I believe that the vast majority of those who complain about linking or framing have a basic misunderstanding of how the technologies work. I have even heard it said that just because it looks as if a site is being copied and the technology is not understood by most people, then it constitutes an infraction. This is like saying that because some people in some parts of the world believe that a television is a box filled with captured spirits, we must not broadcast to those parts of the world. One does not however have to understand the technology in order to file a lawsuit. The downside is that this makes for precedent set by the uninformed for the good of the ignorant, not exactly the best way to help a technology and a new media evolve. MS: One of the legal areas discussed regarding framing is the law of misappropriation and unfair competition. A basic idea of misappropriation is one actor essentially freeriding on another's investment of time and money. It has been suggested by some commentators that TotalNEWS provides no original content and is just using the efforts of other news sites to its own advantage. Others have said that TotalNEWS provides an entirely new service unavailable through the other sites individually. Although I have an idea how you'd respond on this issue already—what are your thoughts about this? RG: TotalNEWS does not provide the same service as say CNN or the Washington Post. Each of those services provides their own particular angle on current news stories. Although much of their content may be simply republished feeds from the AP, Reuters, UPI, AFP or other wire service, their choices as to which stories to concentrate on coupled with their own writers' work makes them a source of particular "flavor" of news. TotalNEWS is about being able to compare, pick and choose your news sources. Last night I watched Brian Williams of MSNBC read out the headlines and parts of stories of today's newspapers. I heard no mention of unfair competition. TotalNEWs doesn't offer any news content (outside of our weekly guest columns). What we offer is an environment where you can easily find this content. That is what a directory is. In order for there to be unfair competition, there first needs to be competition. None of the plaintiffs has ever pretended to be a directory of news sites. If you visit any of the various shops in the vicinity of the Louvre in Paris, you will find sundry guides to how to navigate your way through the Louvre as you visit. Most have graphic copies of artworks and have no affiliation with the Louvre, and yet we never hear complaints of misappropriation. As to unfair competition due to advertising, I have often watched sporting events in which the television commercials surrounding the coverage of these events are directly competing with the banners strung at the actual event. If the argument that we provide no additional services but simply live off of the work of others holds, then I would suggest we begin by first attacking those who have been doing this for more than two hundred years: the public libraries. MS: I think that wraps it up for a basic introduction to this issue. Do you have any final comments? RG: The Internet is still young and fragile as an industry. By reducing dramatically the cost of distribution, it avails those who wish to publish their thoughts of the opportunity to easily reach multitudes. It is an extraordinarily democratic event. It is only normal that those who have traditionally controlled the flow of information, be it for power or profit, find it threatening. And yet this may be the most important evolution in the history of human communications. My comment to those who will be involved in the various litigations that may ensue as this media evolves is this: - Learn all you can about the technology (this may require constant attention). - Find experts who can help you understand the ramifications of legal decisions. - View these challenges as more than just income opportunities. You have a chance to influence much of the future here. - And foremost, use the Internet. Imagine if you had had an opportunity to be involved in the early definitions of law concerning the press, radio or television. What would you have done differently? Speaking only for myself... Roman Godzich LINKS TO FURTHER RESOURCES Information provided here is broken down into three areas: a section on general resources for a brief introduction to the legal doctrine involved in linking and framing, and a section each on resources discussing framing and linking. Many of the materials address both framing and linking, so you will see many links duplicated between those two categories. Doctrinal Resources Michelle Spaulding, "Misappropriation" (1998). One of the doctrines that has been invoked by the litigants in cases of this sort is the law of "misappropriation." If you are unfamiliar with this body of law and would like a brief introduction, click here. Joseph Liu, "A Basic Primer on Trademark Law" (1998). Another doctrine that surfaces frequently in this area involves trademark infringement and trademark dilution. If you are unfamiliar with this body of law and would like a brief introduction, click here. Copyright Basics. Links to primers and other basic information on U.S. copyright law. If you are unfamiliar with this body of law and would like a brief introduction, click here. Framing For a demonstration of how framing works, follow this link -- http://www.totalnews.com: First press the NPR link (NPR didn't file suit and agreed to let TotalNews continue framing their material). Then press the CNN Interactive link (CNN was a party to the suit). Note the difference. TotalNews case complaint, http://www.ljx.com/internet.complain.html. Terms of TotalNews settlement Martin J.Elgison and James M. Jordan III, "TrademarkCases Arise from Meta-Tags, Frames. Disputes Involve Search-Engine Indexes, Web Sites Within Web Sites, As Well As Hyperlinking." Short article with brief summaries of cases and issues. Framing: Washington Post v. TotalNews. Linking: Shetland Times, Ticketmaster v. Microsoft. Metatags: Nat'l Envirotech v. Insituform Technologies, Playboy Enters. v. Calvin Designer Label, Oppedahl & Larson v. Advanced Concepts. Mary M. Luria, "Controlling Web Advertising: Spamming, Linking, Framing, and Privacy." More in-depth article covering many topics related to advertising on the Web. Gives examples, explanations, and discusses legal doctrine. TotalNews, Publishers Settle Suit. CNET news bulletin announcing the TotalNews settlement Unauthorized Linking Prohibited in Framing Suit Settlement. Short article discussing the TotalNEWS settlement. Also provides links to other useful information. Courtney Macavinta, Linking a copyright violation? Meeka Jun, Been 'Framed'? Impostors Beware! John C. Dvorak, "Lawsuit Threatens Future of the Web," PC Magazine. John C Dvorak, "License and Tax Web Sites?" PC Magazine. Joe Salkowski, "Media, sue thyself," Ground Zero. Kevin Davie, "Lulu's Tacos and the Great Cyberspace Draw," WOZA. Seth Finklestein, "Confusion in Comprehension - Not Display," M.I.T. AJR News Link, To Link or Not to Link. Daniel Krohn, The Law of Linking: Part One. Linking and Framing Decisions - Washington Post v. TotalNEWS (complaint and dismissal available for download at this site). An alternative example of framing news, by a site billing itself "An Example of Ethical Framing" Two sites' linking policies - encouraging links, discouraging frames, http://www.aardvark.co.nz/linking.htm and http://www.dummyproof.com/copyright.html. Dr. Andrew Christie, Setting Up a Web Site: Intellectual Property Issues, University of Melbourne (presentation slides discussing copyright and trademarks issues as they relate to linking and framing) Satterlee Stephens Burke & Burke LLP, Links Liability. Linking Matt Jackson, "Linking Copyright to Homepages." Law review article discussing in detail copyright issues and linking as well as related doctrinal considerations. Provides background on constitutional basis and economic rationale for copyright law. Primer included on how the Internet works. Martin J.Elgison and James M. Jordan III, "TrademarkCases Arise from Meta-Tags, Frames. Disputes Involve Search-Engine Indexes, Web Sites Within Web Sites, As Well As Hyperlinking." Short article with brief summaries of cases and issues. Framing: Washington Post v. TotalNews. Linking: Shetland Times, Ticketmaster v. Microsoft. Metatags: Nat'l Envirotech v. Insituform Technologies, Playboy Enters. v. Calvin Designer Label, Oppedahl & Larson v. Advanced Concepts. Ticketmaster Article and Amended Complaint. Brad Templeton on liability for linking and framing Dilbert Hack Pages, Linking to images Courtney Macavinta, Linking a copyright violation? Linking and Framing Decisions - Ticketmaster v. Microsoft (complaint available for download at this site). Two sites' linking policies - encouraging links, discouraging frames, http://www.aardvark.co.nz/linking.htm and http://www.dummyproof.com/copyright.html. Dr. Andrew Christie, Setting Up a Web Site: Intellectual Property Issues, University of Melbourne (presentation slides discussing copyright and trademarks issues as they relate to linking and framing) Satterlee Stephens Burke & Burke LLP, Links Liability. "Scottish Court Orders Online Newspaper to Remove Links to Competitor's Website." Brief piece discussing settlement of Shetland Times v. Shetland News case. "Shetland Islands Linking Lawsuit Settled." Discussing settlement of case. "Microsoft's Link to Ticketmaster Site Spurs Trademark Lawsuit." Short piece discussing origins of Ticketmaster v. Microsoft case and legal issues involved. "AltaVista Cannot Use Its Name on Products or Services, MA Judge Says." Duncan Campbell, "Computing and the Net: Shetland showdown Duncan Campbell on a good day in court for the Web." Editorial criticizing Shetland News Jonathan Wills, "Floatingpoints: Feedback: Tale of two halves." Response by Shetland News' operator to previous editorial. Michelle Spaulding bio