Thu Apr 02, 1998 10:07:56 AM loseph_l:Welcome! My name is Joe (or ?loseph_l?), and I am the moderator of this seminar. Today we're discussing the issues raised in this week's module on linking, framing and metatags. The discussion is pretty free-form. Feel free to jump into the discussion at any time, using the chat bar and "send" button on the bottom of your chat screen. I'll be listening and contributing throughout the hour. Standard etiquette (if there is such a thing) applies.

Thu Apr 02, 1998 10:10:26 AM diane_c:John, this is beginning to feel like the Twilight Zone.

Thu Apr 02, 1998 10:10:46 AM loseph_l:okay. i hope these technical problems are over :(

Thu Apr 02, 1998 10:11:06 AM loseph_l:To start things off, it would be great to get a sense of who you all are, if you feel like introducing yourselves.

Thu Apr 02, 1998 10:11:11 AM john_m:Me thinks it will take a while for everyone to get used to this format

Thu Apr 02, 1998 10:11:22 AM loseph_l:I'll start: my name is Joe, I am an attorney here in Boston and one of the teaching fellows for this course

Thu Apr 02, 1998 10:11:42 AM loseph_l:(with, evidently, a computer with insufficient memory ...)

Thu Apr 02, 1998 10:11:51 AM diane_c:I'm in Oslo, a visiting scholar at the law faculty Computer Law Center

Thu Apr 02, 1998 10:12:03 AM john_m:Ahhh, the wonders of windows

Thu Apr 02, 1998 10:13:00 AM john_m:where is everyone going???

Thu Apr 02, 1998 10:13:18 AM diane_c:John, are you a patent attorney?

Thu Apr 02, 1998 10:13:40 AM loseph_l:Okay, a question to get things started ...

Thu Apr 02, 1998 10:14:04 AM loseph_l:In our hypo, Sharon placed on her travel-agency web site a "deep link" to an internal page of WCA's site ...

Thu Apr 02, 1998 10:14:23 AM loseph_l:Is there any harm in this practice? Should WCA have a legal claim for misappropriation or unfair competition?

Thu Apr 02, 1998 10:15:06 AM moderator_jack_l:testing...

Thu Apr 02, 1998 10:15:41 AM john_m:I don't htink so. I look at my bookmarks and in most cases i bypass homepages to get to the material I want?

Thu Apr 02, 1998 10:15:44 AM diane_c:No. Sharon isn't even a competitor of WCA.

Thu Apr 02, 1998 10:16:06 AM diane_c:Linking doesn't "take" anything

Thu Apr 02, 1998 10:16:45 AM diane_c:WCA can move their banners anywhere on their website that they want to to avoid losing customers IF that were a basis.

Thu Apr 02, 1998 10:17:27 AM john_m:right. and if the linkee wants to protect his or copyright there are other ways to do so -- encrypt, require subscription, etc.

Thu Apr 02, 1998 10:17:43 AM diane_c:I don't think linking involves copyright violations

Thu Apr 02, 1998 10:18:56 AM loseph_l:it does seem as if a copyright claim would be pretty far-fetched. but what about misappropriation? any possibilities there?

Thu Apr 02, 1998 10:19:00 AM john_m:maybe not, but people can choose to protect their material if they want to

Thu Apr 02, 1998 10:19:38 AM diane_c:What is being misappropriated?

Thu Apr 02, 1998 10:20:34 AM diane_c:If it is the value of the advertising (a la Ticketmaster), then just move the darn advertising banners to the deep pages

Thu Apr 02, 1998 10:22:05 AM loseph_l:okay, it seems as if there is a general consensus on deep-linking. let's move on to a potentially trickier question: framing

Thu Apr 02, 1998 10:22:16 AM diane_c:Aha!

Thu Apr 02, 1998 10:22:35 AM loseph_l:Anything wrong with this practice? And how does it differ from deep linking?

Thu Apr 02, 1998 10:23:09 AM diane_c:Again, if the frame blocks out valuable advertising, then relocate the advertisements. Move on to the more serious question of misrepresentation

Thu Apr 02, 1998 10:23:55 AM loseph_l:and what is that question?

Thu Apr 02, 1998 10:24:41 AM diane_c:I think there could be a case for trademark infringement if the frame implied some association that didn't exist in reality. The question is whether a reasonable computer user would believe there is any association via framing. I don't think reasonable computer users do. Dumb, non-computer users might, however.

Thu Apr 02, 1998 10:25:15 AM loseph_l:What about the fact that the url doesn't change? Might this give rise to some confusion, espeically as more people come onto the net?

Thu Apr 02, 1998 10:26:31 AM john_m:I think there is merit to that idea because you certainly can give the impression that this is your material.

Thu Apr 02, 1998 10:28:01 AM loseph_l:going back to john's earlier point, what is the relevance of the possibility of self-help? does this affect the legal analysis?

Thu Apr 02, 1998 10:28:08 AM diane_c:At what point are you going to hold the consumer responsible for knowing how the Internet works?

Thu Apr 02, 1998 10:28:47 AM diane_c:Is there anyone here now who doesn't understand that a framed page has no connection whatsoever to the framing site?

Thu Apr 02, 1998 10:29:28 AM loseph_l:what if i designed a site that looked, in format and style, awfully similar to CNN's site, and then framed it. different result?

Thu Apr 02, 1998 10:30:18 AM john_m:Don't the same concepts work for someone who picks up a magazine at the library and makes copies, or if Jane McDonald names her business after herself, and so on. At some point people need to be responsible. I hate to be cliche-ish, but ignorance is no excuse.

Thu Apr 02, 1998 10:30:19 AM diane_c:Framing isn't the key, though. You've got a host of passing off characteristics there and, yes, I think that's a clear violation

Thu Apr 02, 1998 10:30:46 AM john_m:Not only responsible, but also ACCOUNTABLE

Thu Apr 02, 1998 10:31:29 AM diane_c:But it's the material on the outside frame itself that is contributing to the violation. That's not framing, per se

Thu Apr 02, 1998 10:31:50 AM diane_c:Darn, i can't type as fast as I talk!

Thu Apr 02, 1998 10:32:27 AM loseph_l: :) no rush. i actually like the slower pace. (gives me time to think)

Thu Apr 02, 1998 10:33:40 AM diane_c:Joe, are you asking the question whether framing, per se, is misappropriation in the same terms as the INS decision?

Thu Apr 02, 1998 10:34:11 AM diane_c:gives jack time to sleep :-)

Thu Apr 02, 1998 10:34:54 AM loseph_l:i was actually focusing more on the passing off and trademark issue, but what about misappropriation? do you think there is a claim there?

Thu Apr 02, 1998 10:36:54 AM diane_c:In INS terms, yes. It seems to meet the criteria (where the original source is not given credit). But if the original source is given credit, then the question would be what is the value that's being misappropriated. Lost revenue? Move the banner to a location that can't be missed. Hot news value. That one seems a reasonable possibility.

Thu Apr 02, 1998 10:38:03 AM diane_c:If I link all the good legal resources on linking to my site, am I appropriating the value of everyone else's hard work, even if I give them all credit? Is it more like the Euro parasitic competition theory?

Thu Apr 02, 1998 10:39:10 AM loseph_l:The recent Motorola case suggests that misappropriation may be limited only to news that is "hot" (i.e. time sensitive). If this is so, doesn't this leave most web-sites vulnerable?

Thu Apr 02, 1998 10:40:13 AM diane_c:parasitic something-or-other. The idea is that you're piggy-backing on someone else's work and getting value you didn't earn yourself. Yes, I think the "hot" news analogy may be apt, but I thought Motorola lost on the pager issue?

Thu Apr 02, 1998 10:41:45 AM loseph_l:yes they did. but not (I don't think) on the grounds that the information wasn't sufficiently "hot."

Thu Apr 02, 1998 10:43:11 AM loseph_l:Lets move on to metatags before the time runs out.

Thu Apr 02, 1998 10:43:46 AM diane_c:I have to read that case. Sigh. But I think that framing, where it misrepresents the connection or the origin of information/goods, etc. would be a misappropriation. Not framing per se, but where the facts would lead a reasonable computer user to misunderstand.

Thu Apr 02, 1998 10:44:23 AM loseph_l:What about the use of other parties' trademarks in metatags? Is this problematic in any way?

Thu Apr 02, 1998 10:44:40 AM john_m:Metatagging is the area most problematic for me. Here I see the largest potential for trademark infringement.

Thu Apr 02, 1998 10:46:15 AM loseph_l:the standard for trademark infringement is "liklihood of consumer confusion": what about the argument that consumers are unlikely to be confused, since the list in the search engine identifies it as a different site?

Thu Apr 02, 1998 10:46:18 AM john_m:Not only infringement, but the fact that the infringer is able to "hide" his or her activity. While the physical world requires much diligence on the part of t/m holders, the cyber-world seems to present an even greater challenge.

Thu Apr 02, 1998 10:46:35 AM diane_c:I think so, in some situations, certainly. If 80 other sites embed my tm in their tags, I will end up too deep in the search engine responses to attract anyone to my site. That's a serious misappropriation.

Thu Apr 02, 1998 10:47:32 AM john_m:it is, at the very least, dilution

Thu Apr 02, 1998 10:47:51 AM diane_c:It may also consitute an infringement but again, I think that should be a factual determination. I LOATHE the dilution act. Nasty, evil legislation

Thu Apr 02, 1998 10:48:44 AM john_m:it is all part of the Attorney Full Employment Act

Thu Apr 02, 1998 10:49:00 AM loseph_l: :) . Focusing on the factual issue ...

Thu Apr 02, 1998 10:49:15 AM diane_c:No, not necessarily dilution. Dilution requires umm, tarnishment or (what's the other one)

Thu Apr 02, 1998 10:49:25 AM loseph_l:blurring

Thu Apr 02, 1998 10:49:32 AM diane_c:Whatta guy!

Thu Apr 02, 1998 10:49:55 AM loseph_l:do you think that current netizens would likely be confused into thinking that Sharon's web site is really the site for Northeast Airlines?

Thu Apr 02, 1998 10:51:11 AM diane_c:Those things shouldn't be axiomatic, they are fact issues. My 75 year old dad just got on the Net. He will believe Sharon and NE are connected for about the next six months. Do we need to redefine "consumer" to include a reasonably sophisticated consumer?

Thu Apr 02, 1998 10:51:17 AM john_m:what if an unreputable business is attracted because of use of your t/m isn't there a potential for tarnishment -- might not you be associated with the nonquality business

Thu Apr 02, 1998 10:52:00 AM diane_c:Yes, john, but that should be a deterimination of fact. Not a reason for banning framing per se.

Thu Apr 02, 1998 10:52:25 AM loseph_l:john: excellent point. if, for example, I do a search for "IBM" and get a host of porn sites.

Thu Apr 02, 1998 10:52:42 AM diane_c:tarnishment, in fact.

Thu Apr 02, 1998 10:53:12 AM diane_c:what if you're searching Playboy, though. How would tarnishment be construed there?

Thu Apr 02, 1998 10:53:25 AM diane_c:Grainier photos?

Thu Apr 02, 1998 10:53:32 AM loseph_l:a nice question

Thu Apr 02, 1998 10:54:05 AM loseph_l:again, focusing on the issue of facts: aren't internet expectations currently very much up in the air ...

Thu Apr 02, 1998 10:54:35 AM loseph_l:and aren't they affected by specific rulings? e.g. if the courts begin to bar framing, people's expectations will change

Thu Apr 02, 1998 10:54:48 AM loseph_l:and vice versa

Thu Apr 02, 1998 10:54:51 AM diane_c:What are your thoughts, Joseph? New technology by definition is always up in the air. Users should come with an "assumption of the risk" kind of status

Thu Apr 02, 1998 10:55:16 AM john_m:Diane -- I'm not for banning framing or metalinks or linking. I just think we need to establish what might be considered in the "public domain" so far as net activities and what should be "protectable" intellectual property subject to some right of recourse (or compensation if they choose) for the use of IP. If we claim that the net is the public domain, then we will see less and less valuable info out there.

Thu Apr 02, 1998 10:56:28 AM loseph_l:yes, it is always up in the air. i tend to think that, where consumer expectations aren't set yet, early decisions may have a big impact tipping the expectations one way or the other.

Thu Apr 02, 1998 10:56:31 AM diane_c:I'm not suggesting that the Net is a place where everything becomes dedicated to PD. I'm saying don't change the rules, but apply them as we do in non-Net situations.

Thu Apr 02, 1998 10:56:44 AM john_m:After all, isn't the protectiion we provide there to protect and stimulate creativity

Thu Apr 02, 1998 10:57:13 AM diane_c:You're right, Joe. Certainly it takes deeper and deeper pockets to overcome early, even bad, case law.

Thu Apr 02, 1998 10:57:18 AM loseph_l:interesting: what about this analogy. is metatagging any different from companies calling themselves "AAA Florist" to get listed in the front of the yellow pages? (this is from a posting on the threaded discussion)

Thu Apr 02, 1998 10:57:34 AM john_m:To diane's last comment, I AGREE WHOLEHEARTEDLY!!!!! //smiley //teddybear

Thu Apr 02, 1998 10:57:57 AM diane_c:John, you're looking decidedly jaundiced.

Thu Apr 02, 1998 10:58:16 AM loseph_l:who says these icons are useless :)

Thu Apr 02, 1998 10:58:46 AM john_m:only around the gills

Thu Apr 02, 1998 10:59:12 AM diane_c:I don't understand the wrong in AAA Florist. I've not thought about it. Is there a legal wrong there?

Thu Apr 02, 1998 11:00:00 AM loseph_l:Not as far as I know, but if not, is this any different from using metatags to pop your company to the top of a search engine?

Thu Apr 02, 1998 11:00:18 AM john_m:OK folks I gotta run. Good discussion. Look forward to future discussions.

Thu Apr 02, 1998 11:00:35 AM loseph_l:thanks a lot, john. sorry about the technical glitches

Thu Apr 02, 1998 11:01:40 AM diane_c:No, but the engines will become unusable before long if they aren't accurate.

Thu Apr 02, 1998 11:02:05 AM faye_d: Sorry to barge in - I'm new to this chat experience. Did you all pre-arrange a meeting time?

Thu Apr 02, 1998 11:02:06 AM diane_c:See ya next week john

Thu Apr 02, 1998 11:02:29 AM diane_c:Hei, Faye, this is the Thursday 10 am seminar

Thu Apr 02, 1998 11:02:34 AM loseph_l:what about the argument that this is a problem with the search methodologies, i.e. that they are being fooled by these metatags?

Thu Apr 02, 1998 11:02:59 AM loseph_l:hi faye. there are seminars scheduled each day for one hour

Thu Apr 02, 1998 11:03:06 AM loseph_l:except on weekends

Thu Apr 02, 1998 11:03:23 AM loseph_l:the schedule is posted on the site

Thu Apr 02, 1998 11:03:40 AM diane_c:Yes, they are. They can adjust for the sites that embed too many references (the word "sex" appearing 8 times in the metatage) but they can't eliminate the one use of Playbody

Thu Apr 02, 1998 11:04:08 AM faye_d:Thanks, I'm just starting to figure things out.

Thu Apr 02, 1998 11:05:28 AM loseph_l:interesting. when you program your site, how do you deal with the metatag issue?

Thu Apr 02, 1998 11:05:33 AM diane_c:There is a new search technology, Alexa, that doesn't rely exclusively on keywords, it looks at bits as geometry (I think) and makes associations that way. So it can search more criteria in order to find a relevant link. It is a form of artifiical intelligence

Thu Apr 02, 1998 11:06:37 AM diane_c:I use a lot of relevant keywords. For the WBA site, I use "women, lawyers, bar, association, legal, law, etc.

Thu Apr 02, 1998 11:07:17 AM loseph_l:do you find that that is sufficient for you to turn up in the right place in searches? or is there "noise" from other sites that use metatags strategically?

Thu Apr 02, 1998 11:08:08 AM diane_c:I try to hit as many different search words as possible, rather than using the same ones a zillion times. Fortunately, my kind of site is easily searched. There are only about 25 such sites online. People looking for use are targeting specifically. It's diferent from sites selling "shoes"

Thu Apr 02, 1998 11:08:55 AM diane_c:I haven't tried to 'position' myself on my law firm site. I'm still considering the ethics of that.

Thu Apr 02, 1998 11:09:22 AM diane_c:Did you see that Carl Oppendahl is taking this course?

Thu Apr 02, 1998 11:09:41 AM loseph_l:yes, i did. i think it would be fascinating to have him in one of these seminars

Thu Apr 02, 1998 11:09:58 AM loseph_l:especially when the domain name issue comes up next week

Thu Apr 02, 1998 11:10:29 AM diane_c:He is regularly on the copyright-cni listserv and also cyberia-l. Why don't you email him and ask if he's log in to this seminar period. He might if he's free.

Thu Apr 02, 1998 11:10:52 AM diane_c:If he will log in to this seminar, I meant to say

Thu Apr 02, 1998 11:11:03 AM loseph_l:good idea. i will give it a try.

Thu Apr 02, 1998 11:11:22 AM diane_c:He spends a lot of time online. He'll probably be quite willing to oblige unless there's a conflict

Thu Apr 02, 1998 11:11:53 AM loseph_l:hmm. it looks like we've exceeded the alloted time. it's been terrific talking with you

Thu Apr 02, 1998 11:12:09 AM diane_c:I'll let you go now. Thanks for pushing the discussion along. Will the fellows exchange the ideas from each seminar and pass them around to us?

Thu Apr 02, 1998 11:12:31 AM diane_c:Maybe post samples of the arguments somewhere?

Thu Apr 02, 1998 11:12:48 AM diane_c:I'll send you Katherine Ken's address. See you next week! Bye

Thu Apr 02, 1998 11:12:51 AM loseph_l:yes, we are trying to get the chat sessions archived somewhere on the site.

Thu Apr 02, 1998 11:12:57 AM loseph_l:see you next week!