by William Fisher and Dequan Wang
Last Updated: June 15, 2001
Table of Contents
The Internet is a vast network that connects many smaller groups of linked computer networks, on and through which information is stored and transmitted. The "interconnected" character of the Internet is one of the things that makes it so popular and powerful in facilitating communication and electronic commerce. However, "interconnectivity" has also given rise to increasing legal controversy and turmoil. Various methods of enhancing or exploiting the web-like structure of the Internet have been attacked as violations of others' intellectual property or other proprietary rights. In this module, we will consider the current status of those controversies. The Case Study explores in some detail one recent case of this general sort. The Readings then examine the histories of some related dimensions of "interconnectivity."
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Ditto.com operates a "visual search engine" on the Internet. Like other Internet search engines, it allows a user to obtain a list of related Websites in response to a search query entered by the user. Unlike other Internet search engines, Ditto retrieves images instead of text. More specifically, It generates a list of reduced, "thumbnail" versions of photographs related to a user's query. To see how the system works, please visit www.ditto.com. Enter a phrase in the search box and click "Search." Then click on any of the "thumbnail" pictures retrieved by your query.
An older, now superceded version of Ditto's service was known as Arriba Vista Image Searcher. By "clicking" on a thumbnail image, an Arriba Vista user could view an "image attributes" window, which displayed a full-size version of the image, a description of its dimensions, and an address for the Web site where it originated. This full-size image was not located on Ditto's Web site. Rather, it was displayed by opening a link to its originating Web page. But only the image itself, and not any other part of the originating Web page, was displayed on the "image attributes" page. By clicking on the address, the user could link to the originating Web site for the image. Ditto.com's current search engine, as you've seen, operates in a slightly different manner. Now, when a Ditto.com user clicks on a thumbnail, two windows open simultaneously. One contains the full-size image; the other contains the originating Web page in full.
Ditto's search engine (in both of its versions) works by maintaining an indexed database of approximately two million thumbnail images. These thumbnails are obtained through the operation of Ditto's "spider." A spider is simply an automated program that explores (crawls) the Web, looking for information. The most common kinds of Spiders are the ones that collect web pages for search engines to index. To learn more about this technology, see how Search Engines and Spiders work.
Kelly is a photographer who maintains two Web sites. www.goldrush1849.com provides a "virtual tour" of California's gold rush country and promotes Kelly's book on the subject. www.showmethegold.com markets corporate retreats in California's gold rush country. Approximately thirty-five of Kelly's images were indexed by the Ditto.com crawler and put in the Ditto.com image database. As a result, these images were made available in thumbnail form to users of Ditto's visual search engine.
Angered by this nonpermissive use of his photographs, Kelly sued Ditto.com for copyright infringement. Before reading Judge Taylor's decision in the case, try to predict what Kelly's arguments would be. After reading the case and relevant provisions of the DMCA, please consider the following questions:
1. The "image-attributes" page offered in the first edition of Ditto.com especially troubled Kelly. It allowed users to view (and then to download) full-size versions of the plaintiff's photographs without viewing the rest of the plaintiff's Web page. This function was, at best, loosely connected to the search engine's primary purpose of finding and organizing Internet content for users. Judge Taylor recognized that this feature "somewhat detracts from the transformative effect of the search engine." However, Taylor continued, "when considering the purpose and character of use in a new enterprise of this sort, it is more appropriate to consider the transformative purpose rather than the early imperfect means of achieving that purpose. The Court finds the purpose and character of Defendant's use was on the whole significantly transformative." Do you find Judge Taylor's reasoning convincing? Do you find Ditto.com's new edition, which eliminates the "image-attributes" page and instead simultaneously opens the originating Web page along with a full-size image, a "perfect" means to achieve transformative purpose?
2. Defendant's search engine also enabled users to "deep link" directly to the pages containing retrieved images, and thereby bypass the "front page" of the originating Web site. As a result, these users would be less likely to view all of the advertisements on an originating Web site or to view the Web site's entire promotional message. Nevertheless, Judge Taylor found that the Plaintiff had shown no evidence of any harm or adverse impact from the Defendant's activity. Are you persuaded?
3. In applying the first of the fair-use factors, Judge Taylor reasoned that "where, as here, a new use and new technology are evolving, the broad transformative purpose of the use weighs more heavily than the inevitable flaws in its early stages of development." Do you agree?
4. A robots.txt file is a widely recognized standard used to stop search engines from crawling a web site. It works as a de facto automatic copyright notice for spiders. Is it fair to infer that websites not employing this device are "inviting" or "acquiescing" in visits by spiders?
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The legal and technical issues involved in Web site publishing are intertwined. To see how they fit together, please read the following survey: Martin J. Elgison and James M. Jordan III, "Trademark Cases Arise from Meta-Tags, Frames. Disputes Involve Search-Engine Indexes, Web Sites Within Web Sites, As Well As Hyperlinking." Some of the individual issues discussed by Elgison and Jordan are explored in more detail below:
"Linking" (also referred to as hyperlinking) is the primary mechanism by which Internet sites are connected. By simply clicking on a "live" word or image in one Web page, the user can view another Web page located on server elsewhere in the world, or simply elsewhere on the same server as the original page. This system helps gives the Web its extraordinary communicative power. However, under some circumstances, a link may also undermine the rights or interests of the "target" site. Suppose, for example, that X sets up a homepage for her site. On the homepage she places some advertisements, from which she hopes to make some money. The homepage also contains links to various subordinate pages, which contain content that X believes consumers wish to see. Y then creates his own Web site, which contains links to X's subordinate pages. The net result is that visitors to Y's site will be able to gain access to X's material, without going through X's homepage where the advertisements are placed. This activity is called "deep linking." (For an illustration of deep linking, please click here. This will take you to a news article on www.news.ft.com without going through its homepage.)
One of the first major cases in the law of linking arose in Scotland. At issue was the use by one news Web site of the headlines of another news Web site to link to the latter's stories. Read about this case in the following article: Scottish Court Orders Online Newspaper to Remove Links to Competitor's Website.
A little over two years after the Shetland News decision, a California court was presented with an analogous case. In reading about this dispute, consider the factual, legal, and cultural differences that might have led to its drastically different conclusion: CA Judge Dismisses Copyright Claims Based on Linking.
Recently, a host of new cases involving linking have arisen. The most interesting of these involve allegations of "contributory copyright infringement." On this theory, it is asserted that Web sites should be held accountable when they provide links that assist Web users to engage in nonpermissive copying of copyrighted works. The first case takes place in Holland: Scientologists' copyright suit shapes Net liability, Dan Goodin, CNET News.com (June 9, 1999). The second case arose in Utah: Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Summary (Dec. 6, 1999)
The related practice of "framing" may also serve to undermine the rights of Web site owners. The use of "frames" allows a Web page creator to divide a user's Web browser window into several separate areas. The programmer of the Web page can dictate what goes into each frame. Commonly, a Web site designer creates a page that at all times displays one frame containing the name of the Web site and other identifying information. For example, a Web site employing frames might always show the original Web site's graphic logo on the top of the page while allowing the user to view the "framed" site in a different frame. (For an illustration, please visit www.totalnews.com. Click on "US Local", then "Birmingham Post-Herald." The latter site, you will see, is "framed.")
Persons and organizations whose sites are "framed" without permission have objected to this practice on three main grounds: First, they argue that Web surfers might easily be confused concerning the relationship between the framed site and the framing site. Second, the framing site is parasitic, unfairly deriving traffic from the legally protected work on the framed site. Third, the activity of framing distorts the aesthetic of the target site.
One of the first legal disputes arising out of objections of these sorts involved Total News (http://www.totalnews.com/), a Web site that links to several major news sites. Although the case brought against Total News was settled (and therefore never resulted in any substantive law), its facts provide an excellent illustration of the difficulties presented by framing. Please read the attached excerpt from Mary M. Luria, "Controlling Web Advertising: Spamming, Linking, Framing, and Privacy."
Another framing case in which the defendant prevailed is Futuredontics, Inc. v. Applied Anagramics, Inc.. In retrospect, the outcome probably derived from a crucial omission in the plaintiff's case: no evidence of damage from the defendant's activities had been shown.
Most framing cases are straightforward: one Website frames another. Oddly, this common scenario has resulted in no court rulings on the basic question of whether framing is or is not unlawful.
(3) Meta Tags
Web sites are written in the HTML language. This language consists of a set of "tags" that can be used to format and arrange text, images, and other multimedia files. "Meta tags" are tags that have no visible effect on the Web page. Instead, they exist in the source code for a Web page to assist search engines in ascertaining the content of the page. Problems arise when website designers include in their lists of meta tags the names or descriptions of other companies. Suppose, for example, that Coca Cola used the keyword "Pepsi" in its meta tags. Web surfers who used search engines to obtain information about "Pepsi" would then be directed to Coca Cola's Web site. (For an example of a site that uses trademarked words in its meta tags, see http://macos.about.com/. When you visit that site, select "Page Source" under the "View" menu in your browser [either Microsoft Internet Explorer or Netscape Navigator].) The gravitational power of meta tags has been diminishing as search engines have become more sophisticated in the ways they strive to ascertain the contents of Web sites. Nevertheless, meta tags retain sufficient capacity to shape behavior on the Internet to continue to generate legal controveries.
One of the first such cases was Oppedahl & Larson v. Advanced Concepts, Civ. No. 97-Z-1592 (D.C. Colo., July 23, 1997). The defendants were found to have no clear legal reason for using the name of Oppedahl & Larson (a law firm that had dealt in domain name disputes) in their meta tags. By using the plaintiff's name in the tag, the defendants were trying to capture traffic that would gain them domain name registration fees or web site hosting clients. The court barred them from using the name without authorization. For more details regarding this case, please read David J. Loundy, "Hidden Code Sparks High-Profile Lawsuit."
By contrast, in Playboy vs. Terri Welles, Civ. No. C-97-3204 (N.D. Cal., Sept. 8, 1997) District Judge Judith N. Keep refused to grant an injunction against Terri Welles, Playboy's 1981 Playmate of the Year, to prevent her from using terms such as "Playmate" and "Playboy" on her web pages and within her meta tags. The judge ruled that the defendant was making fair use of Playboy's marks because she was using them to describe herself truthfully on the web site. The Ninth Circuit Court of Appeals rejected Playboy's appeal of the ruling, on Oct. 27, 1998. For more details concerning the case, see Playboy Enterprises v. Welles.
The most recent case involving met tag use is Bihari v. Gross. Plaintiffs Marianne Bihari and Bihari Interiors, Inc., owner of the service mark "Bihari Interiors," brought a trademark infringement action against Gross, operator of a website that harshly criticized Bihari's business practices. Among the many bases of Bihari's complaint was Gross' use of the term "Bihari" in his meta tags. In finding for the defendant, the district court emphasized the fact that Bihari did not have a website of her own. Thus, users were unlikely to experience even "initial interest confusion" when searching the Internet for information about Bihari Interiors. Citing Playboy v. Welles, the court further held that Gross had used the terms "Bihari Interiors" and "Bihari," not as trademarks, but rather in a descriptive sense to fairly identify the content of his websites. For more information on this case, see Bihari v. Gross.
(4) Search Engines
Search Engines are popular web-retrieval tools that match a search query submitted by an Internet user with the websites whose content best corresponds to the submitted search terms. A few search engines sell to websites the right to be placed high on the lists generated in response to users' queries. Most, however, create their listings automatically. This is usually acheived as follows: The search engine constucts and activates a "spider," also known as a "crawler" or "robot." The spider visits web pages, reads them, follows the embedded links to other pages, etc.. Everything the spider finds is deposited in the search engine's index. Finally, the search engine's software sifts through the millions of pages recorded in the index to find matches to a given query and then ranks those matches in order of relevance. For general information about search engines, please refer to http://searchenginwatch.com.
As the Case Study suggested, this activity is especially likely to trigger accusations of copyright infringement when used by visual search engines, such a Ditto.com. (For a historical and technical perspective on visual search engines, take a look at AltaVista's Photo Finder service, introduced in 1998.) In such cases, the defendants primary line of defense is likely to be the fair-use doctrine. It is possible that, in the future, similar challenges could be brought against search engines that prepare brief textual summaries, typically copied from the listed websites. (See, for example, Google.)
Occasionally, spiders are used by organizations other than search engines. Bidder's Edge (BE) was one such organization. Until recently, BE operated an online "auction aggregation service." In other words, it did not itself operate a Internet-based auction, but rather provided users links to auctions being held on other sites. One of the sites to which BE provided such connections was eBay, the largest and most famous auction system in the world. To gather and update information from Ebay, a BE spider "crawled" into the Ebay system approximately 100,000 times a day. Ebay objected. When negotiations broke down, Ebay brought suit and ultimately prevailed -- not on the basis of copyright or trademark infringement, but on the ground that the nonpermissive searches conducted by BE's spider constituted a "trespass to chattels." The court's opinion is available here.
The case is currently being considered by the Ninth Circuit. 28 law professors submitted a brief to the Court of Appeals, arguing that the district court's trespass theory would unavoidably extend to linking. "Linking, like search engines (do), would now seem to exist at the sufferance of the link-to party, because a Web surfer who followed a 'disapproved' link would be trespassing on the plaintiff's server just as Bidder's Edge was." The professors believed that "requiring permission to link has dire implications for free speech as well as electronic commerce." (Please click here to read the entire brief of Amici Curiae)
For a discussion of the difficulty of applying old legal doctrines to new kinds of technology -- and a proposal concerning a sensible way of handling unwanted spiders, see Maureen A. O'Rourke Shaping Competition on the Internet: Who Owns Product And Pricing Information?
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1. Who should win the appeals in the Ditto.com case and the Bidder's Edge case?
2. Are the social advantages of interconnectivity sufficiently strong that the plaintiffs in all of these cases should lose? If not, in what ways should the law limit the ability of web site designers to make nonpermissive connections to other web sites?
3. Some observers think that the unsatisfactory ways in which courts have thus far handled cases involving interconnectivity demonstrate, among other things, how poorly suited traditional intellectual-property and tort doctrines are for addressing conflicts that arise on the Internet. In other words, these judicial decisions are sometimes cited in support of the general proposition that we need an entirely new legal doctrine to govern the Internet. Do you agree?
4. Web site owners who wish to avoid "being framed" by other sites can use HTML coding to establish strong (though not
perfect) defenses. That is, a Web page can be encoded so that most Web browsers will not allow it to appear within a frame,
but only in its own, separate browser window. (Click here to learn about these techniques.) To what extent do you feel Web
site owners wishing not to be framed should be required to employ such technical solutions before they can seek legal redress?
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Law Primer: Copyright Basics: If you are unfamiliar with this body of law and would like to know more, click here to check out our copyright primer and related links.
Law Primer: Trademark Law. Much of the debate concerning the legitimacy of meta tags involves trademark law. If you are unfamiliar with this body of law and would like to know more, check out the trademark section in the library.
Mark Sableman, Link Law: The Emerging Law of Internet Hyperlinks. A thorough examination of legal implications of hyperlink use on the Internet. A long but comprehensive look at the many legal arguments that can be made for and against users of hyperlinks.
Brad Templeton, 10 Big Myths about copyright explained. "An attempt to answer common myths about copyright seen on the net and cover issues related to copyright and USENET/Internet publication."
Timothy J. Walton, Copyright for Webmasters. This article gives a basic description of copyright law, aimed at those who are involved in the production of Web sites.
Timothy J. Walton, Trademark Law for Webmasters http://www.netatty.com/trademark.html. Same as above, but focusing on trademark law and the Web.
Jeffrey R. Kuester and Peter A. Nieves, "What's all the hype about hyperlinking?": Short article advocating the activity of linking and asserting that it is "the essence of the Web". Also discusses key linking cases and the use of state common-law claims in the Internet context. Looks at the feasibility of applying state law to regulate Internet activities. Concludes by commenting on recent federal attempts to regulate the Internet through the now defunct Communications Decency Act (CDA).
Mary M. Luria, "Controlling Web Advertising: Spamming, Linking, Framing, and Privacy.": In-depth article, which focuses on "the delicate balance between protecting the rights of people and businesses and preserving the spirit of open communication that is the hallmark of the Web." Areas examined include spamming, linking, framing, and consumer privacy.
Matt Jackson, "Linking Copyright to Homepages.": Law review article discussing linking in detail as well as related doctrinal considerations. Provides background on constitutional basis and economic rationale for copyright law. Primer included on how the Internet works.
John M. Mrsich, Meeka Jun, "TermsYou Need to Know: Search Engines.": Description of how search engines work; terms used; and distinctions among search engines, search directories, and search managers.
The Perkins Coie Internet Case Digest: excellent and diligently updated database of Internet case law.
The Link Controversy Page: A very conprehensive site providing links to articles and cases. Don't try to cover the whole site! Just skim it to get a sense of the debate.
Meta Tag Lawsuits: A concise overview of all meta tag cases and links to articles and other resources. Again, you shouldn't try to review the entire site, just skim the case overviews.
TotalNews, Publishers Settle Suit: CNET news bulletin announcing the TotalNews settlement.
Linking and Liability: Nice overview of the linking controvery. Begins by describing, in detail, the activity of linking. Then looks at the linking issue against the backdrop of current legal doctrine such as derivative-work rights under copyright law, the doctrine of 'passing off', defamation, and trademark infringement. Concludes by providing a summary of the Shetland News case.
Hypertext Linking Called into Question: Brief discussion of Ticketmaster case. Provides links to the complaint, Microsoft's Answer, and Ticketmaster's Reply. Also has links to related articles.
The Washington Post Co., et al. V. TotalNews, Inc.,97 Civ. 1190 (S.D.N.Y., filed Feb. 2, 1997): Case settled June 5, 1997. No opinion was issued. You can see the Complaint or the text of the Settlement.
Futuredontics, Inc. v. Applied Anagramics, Inc., No. 97-56711, 1998 U.S. App. LEXIS 17012 (9th Cir. 07/23/98).Court denies preliminary injunction against AAI's use of a framed link to Futuredontics' web site. The denial was upheld on appeal. For more information see this article discussing the case.
Shetland Times Ltd. v. Dr. Jonathan Willis and ZetnewsLtd., Scotland Court of Sessions (Oct. 24, 1996): Case settled Nov. 1997; no opinion issued. Text of Settlement.
Ticketmaster Corp. v. Microsoft Corp. [CV 97-3055RAP] (C.D. Cal., filed April 28, 1997): Case settled; no opinion issued. Text of Complaint.
Bernstein v. J.C. Penney, Inc., No. 98-2958-R (CD CA, dismissal Sept. 22, 1998). Case dismissed. For a discussion of the case see this article.
Church of Scientology v. Dataweb et al, Case No. 96/1048 (Dist. Ct. of the Hague, Holland, June 9, 1999). Court found ISP liable for its customer's posting of infringing material on the Web. Liability was found because there was notice, which could not be reasonably doubted, of the poster's activities.
Oppedahl & Larson v. Advanced Concepts [CivilAction 97-3-1592 (D. Colo.) filed July 23, 1997]. You can see the permanent injunctions entered with respect to the various defendants, namely Welch and Advanced Concepts, and Professional Website Development, Internet Business Services.
PlayboyEnterprises Inc. v. Calvin Designer Label [DC Ncalif, No. C 97-3204;9/8/97]. You can see the Complaint and the Preliminary Injunction Order. Playboy Enterprises, Inc. v. Welles No. 98-CV-0413-K (JFS) (S.D. Cal. Apr. 21, 1998). Case discussion on the New York Times Web page. Registration required. Full text of the Decision.
Playboy Enterprises, Inc. v. Welles No. 98-CV-0413-K (JFS) (S.D. Cal. Apr. 21, 1998). Full text of the Decision.
Niton Corp. v. Radiation Monitoring Devices, Inc, 27 F. Supp. 2d 102 (D. Mass. 11/18/98): Court granted preliminary injunction against defendent, barring it from using anything in its meta tags that would mislead visitors in a number of different ways.
SNA Inc. v. Array et al, No. CIV A 97-7158 (E.D. Pa., June 9, 1999). Enjoined defendant from using plaintiff's name in its meta tags
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