MEMORANDUM
TO: R. Nicholas Gimbel
FROM: William W. Fisher III
RE: "Framing" of Web sites
DATE: April 14, 1999
In response to your request, I have prepared the following report on current customs and attitudes concerning the "framing" of Web sites. In preparing the report, I have relied upon the following sources:
I. Definitions
A. Linking
A hypertext link is an embedded electronic address that points to another Internet location and takes the user there. In particular, an HREF ("Hypertext REFerence") link is created using HyperText Markup Language (HTML), the programming language used to program web pages. Such a link instructs Internet browsers to "stop viewing content transmitted from one location, and begin viewing that of another."
B. Deep Linking
A "Deep Link" is an HREF link to a subordinate page on a third-party or target site. "The ‘deep’ refers to the depth of the page in a site's hierarchical structure of pages. Any page below the top page in the hierarchy (the home page) can thus be considered deep."
C. Framing
The ability to create ‘framed’ Web pages was introduced in 1996 by Netscape Communications Corp. as a proprietary feature of their web browser. Framing was originally introduced as an "associational tool that provides a means for dividing a Web site into separate windows . . .." However, the advent of frames has also enabled Web sites to link to a third-party site (commonly known as a "target" site) and display the target site’s content without leaving the first site, as would be the case with the traditional hypertext link discussed above. From a user’s perspective, the visual effect of a frame of the latter sort is that the target site’s content is displayed in one frame (usually the central frame on the screen), while other material fills the remaining frames. Typically, in such situations, the user’s Web browser continues to display the address or URL of the framing site, rather than the URL of the target site.
The manner in which a target site is framed varies somewhat. In some cases, portions of the target site (e.g., the border) are obscured by the frame. This can cause the target site’s advertisements or other identifying information to be modified or hidden. Another type of framing incorporates the practice of ‘deep linking,’ discussed above. In that situation, the framing site incorporates into its own structure material created and posted by others by linking to and framing subordinate pages from the target site. A third type of framing combines elements of the first and second types ¾ creating a ‘deep linking’ frame that avoids or obscures advertisements or identifying material on the target site.
D. Commercial Framing
Commercial framing, a subset of framing, involves the incorporation of a third-party site via frames for commercial purposes. Although commercial framing is physically indistinguishable from non-commercial framing, its motivations plainly are very different. Consequently, it is often treated as a separate type of activity.
II. Customary Practices
A. Linking
Linking is a ubiquitous practice on the Internet. Indeed, many observers consider linking to be the key feature that has made the Internet a success. Accordingly, "the general view of the industry is that no permission is required for linking . . .." Moreover, the conventional view is that the creators of most sites would welcome links to their sites, because increased traffic means increased numbers of viewers and, perhaps, increased advertising rates, and hence revenue.
i. Exception to Customary Practice of Linking
There is, however, one exception to the generally accepted "open invitation" approach to linking, which arises when the creator of a Web site indicates on the site itself that other sites may not link to it without permission. Such statements are appearing with greater frequency, thereby thrusting the question of their validity into the limelight. At least some commentators are suggesting that demands for permission should be heeded. One example of such a site is the New Zealand Television Web site which "has threatened legal action against those who link without permission."
B. Deep Linking
The practice of "deep linking" is not uncommon. However, popular perceptions of its legitimacy depend heavily on the surrounding circumstances. For example, some observers have stated that certain forms of deep linking can raise copyright concerns. Others have recommended that, where no link agreement is attainable, "links should be confined to minimum text only . . . and should link through the main page or index, not directly to a high value location deep within the site even if this is possible." Still other observers have suggested that "deep linking" be considered inappropriate where such linking circumvents a site’s reasonable preventive measures. In particular, one of the "criticism of deep linking is that it diverts visitors from a site's front page, and thus diminishes the site's ability to expose visitors to advertising, disclaimers or navigation appearing on the gateway page."
C. Framing
Nonpermissive framing of third-party sites is uncommon, and nonpermissive framing for commercial purposes is very uncommon.
Most instances of noncommercial third-party framing involve situations in which both the framing site and the target site derive a benefit from the practice. For example, an NFL fan page might use frames to incorporate local newspaper coverage of the team in question. In that situation, the local newspaper benefits by extending its reader-base, while the fan site benefits by providing its visitors a richer store of relevant information. By contrast, framing as between competitors vying for the same customer base is virtually nonexistent.
Most of the few instances of commercial third-party framing that can be found on the web seem to be the product of inter-site agreements.
III. Reasons for the Rarity of Commercial Framing
Setting aside the technical difficulties that frames may present, Web-site developers seem extremely hesitant to engage in nonpermissive third-party framing, particularly in the commercial context. The reasons most commonly cited as the basis for this reluctance are reviewed below.
A. Widely Publicized Threat of Legal Liability
Perhaps the single most important factor contributing to this reluctance to engage in framing is the threat of legal liability. The suits that targeted sites have brought against framers have been very widely publicized. Numerous commentators have reported the existence of a "gray area" in the law concerning frames and have counseled web developers against the use of third-party frames. A cursory search of the Web turns up a number of such articles including:
Althought some of this publicity is hostile to the idea of legal liability for framing, no commentator of which I am aware has encouraged web developers to run the risk of liability.
B. Instructor Discouragement
Another reason for the rarity of third-party framing is that Web design instructors and related "How to" guides are increasingly discouraging the practice of third-party framing without first obtaining permission. Tom Bruce, founder of the Legal Information Institute, contends that the academic community has traditionally frowned on the practice of third-party-site frames.
C. Commonly Considered Improper
Finally, nonpermissive framing — especially in the commercial context — is widely considered improper. Three reasons are commonly given to explain the unfairness of the practice.
1. Framing Confuses Consumers
It is widely believed that framing is improper because it can lead to consumer confusion. There are two primary types of confusion -- that of origin and affiliation.
Confusion as to origin is possible when material on a subordinate page of the target site has been framed. This is due to the fact that most identifying information typically is contained on the target site’s home page. Further exacerbating the confusion is the fact that a user’s browser will generally display the URL of the framing site, leaving the target site’s unique URL hidden. Sophisticated users of the internet can discover with URL of the target site without difficulty, but many users do not know how to do so. One result is that, if the user asks his browser to save the address of the site in his list of "favorites" or "bookmarks," the address that is retained will be the address of the framing site, not the address of the target site — thus perpetuating the user’s confusion concerning the origin of the material.
Confusion as to affiliation is also possible when the manner of the framing suggests to the average Internet user that the target site has consented to or authorized the activity. For example:
"pages from the Jewish Defense League web-site could be made to appear within a frame on a Neo-Nazi site, causing obvious confusion." In this case, "the problem isn't that the Nazis are passing off the work of the JDL as their own -- the problem is the potential reputational damage to the JDL from having its name associated with a fascist group."
2. Framing is Considered Parasitic — Reaping Where one has not Sown
Third-party site framing is widely criticized as parasitic when the framing is either intended to, or has the effect of, creating the illusion that the framed material originates not from the target site, but rather from the host site. Authors who would have no objection to a direct link to one of their articles, become offended if the article is displayed in such a way as to suggest it was written by someone else. The sentiment of author Dominique Paul Noth is typical:
"My column is free on the Internet, and I certainly welcome links, but I know it annoys me when I've found my column framed within another site's ads." "The issue for me as a writer isn't copyright so much as someone making profit and hence taking credit for something I did."
It is for this reason that framing is often described as Internet "hi-jacking."
3. Framing Threatens Artistic Integrity
The third basis of the common perception of the illegitimacy of third-party framing is that the artistic integrity of the framed work is threatened. The visual impact of the target site can be impaired by the cluttered appearance resulting from the use of frames. Tom Bruce, for example, maintains that traditional stance of the academic community against the practice of third-party framing is based primarily on notions of respecting authorship.
Along a related line, advertisements on a target site may be obscured or forced to coexist with advertisements on the framing site. This fact is especially troublesome when "ads on the metasite [are] for the company's competitors or some other Web site that the framed company would rather not be associated with, such as one geared toward adult audiences."
Appendix A
Results of Phone Survey (Web Designers)
During the week of April 12, two of my research assistants -- Jonathan Lindsay and Jocelyn Dabeau -- interviewed several professional Web site designers to ascertain their attitudes toward and usage of frames. To ensure that the interviews were not biased, the interviewees were told only (and truthfully) that Prof. Fisher was conducting research into customary attitudes and practices concerning linking and framing. The fruits of all of those interviews are summarized below.
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The Selling Source
partner@sellingsource.com
Lesaver works almost exclusively on commercial web sites and does not use frames 99% of the time. Generally the only circumstance in which frames are used by his company is where the target company has knowledge of the framing. Often there is a standing agreement between the two sites, pursuant to which the framing site agrees to pay the target site referral fees or some portion of its advertising revenue. In other instances, frames are used when the companies are affiliated. The only time authorization is not a prerequisite for framing is if the material to be framed is in the public domain. For deep-linking, he says that there is no official company policy, and that whether he would request authorization for deep-linking would depend upon individual circumstances.
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Integrated Rhythm & Noise
Spoke to: Jay Williston
Williston reports that he would "never" frame someone else's site. If a client insisted upon framing a third-party site without authorization, he would refuse. He feels that if you do decide to frame someone else's material, you should "get permission if the content appears to be on your site; that is where the problem is." "Just like in real life you can't represent someone else's content as your own," you can't frame other people's material because that is essentially what frames do (represent someone else's content as your own). He perceives no difference between commercial and non-commercial use because "a copyright is a copyright." He is not concerned, however, about deep-linking.
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Canyon Web Design
Spoke to: Karen Slovin
Slovin reports that framing third-party sites is generally frowned upon, but a lot of clients and developers still don't worry about it. However, there is a definite trend away from the use of frames; people are becoming less and less comfortable with it. Developers will do it if customers really want it. But they will often caution them.
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City Web Design
Spoke to: Linda Wolf
Wolf reports that frames are a "definite no no." The legitimacy of deep linking depends on the context. Commercial deep linking less likely to be OK. She wouldn't normally do it in any context though. It is different from nonprofit deep linking. Her main concern is getting sued.
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CitySites Web Production Co.
Spoke to: Tara
Tara reports that framing is widely used, but that developers generally get permission first. For links, one doesn’t have to ask permission. However, one needs to get permission for framing, even if it is non-profit.
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Design This!
Spoke to: Amy
Amy reports that she would ask permission 80% of the time before framing another site. Whether permission is requested depends primarily on whether, under the circumstances, it seems that the target site would mind — e.g., if commercial interests are at stake. She wouldn't ask permission for non-commercial frames. The legitimacy of deep linking is very context-sensitive. For example, she wouldn't ask for permission to deep link to an article because its origin (i.e. author's name/publication's name) is generally prominently displayed.
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RAD Internet Advertising
Spoke to: proprietor
He says he does not use frames unless it is absolutely necessary. He always gets permission first. When engaging in deep linking, he not only gets authorization, but he also provides a link to the third party's home page in addition to the page that he has deep linked. He reports no difference for commercial versus non-commercial use.
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Meuer Marketing Group
Spoke to: Mike Meuer
In Meuer’s opinion, framing a third-party site is the norm "because you don't want people to leave your site." However, it is "good common sense" always to get permission, both for framing and for deep-linking.
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NewVantage
www.nvi.com
Spoke to: Andrew Polson
Polson engages in "very little" framing, and for the small amount of framing that he does, he generally gets authorization first. He might not get authorization to frame something like Mapquest, which he calls "general information." He does not see much difference between a commercial and a non-commercial frame, except that if he did not get a response regarding authorization for something that he wanted to frame, he would be more likely to go ahead and frame it if the work were non-commercial (defined as informational). However, he would be less likely to frame someone's personal web page than to frame a corporate web page. He thinks that deep-linking is "less of an issue because with deep-linking it is more obvious where you are going," while framing "can confuse people into thinking that the information is coming from your own site."
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Internet Technologies Group
Spoke to: John Munson
Munson asks permission for framing regardless of whether it is in a commercial or a non-commercial context. He says that it is "not just a link," it is "taking the identity from that company." He believes you should also have authorization for deep-linking. "Whatever the link is, it is the property of that website," and they should be able to determine to what use their property is put.
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Internet Marketing Solutions
Spoke to: Annette
Annette believes her company has only framed third-party content once, and that instance involved an authorized Honda dealer framing the Honda web site. They very rarely use frames, and especially not third-party frames, because they do not want to end up with broken links. Regarding permission for framing, she doesn't "believe you need it," but she says she "could be wrong." She thinks that, "as long as you are not changing the content, then you are not passing off." Since they nearly never engage in third-party framing, however, she says she really would not know.
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Arachnidae Internet Marketing
Spoke to: proprietor
He frames all of his sites and engages in deep-linking as well, but he only does so with permission "because all web pages are copyrighted, so without permission you are violating copyright."
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Boston Internet Group
Spoke to: Jeremy Johnstone
Johnstone never frames third-party web sites, and he would frown upon anyone who did frame third-party sites without permission. He does not feel differently about commercial versus non-commercial use. He does not engage in deep linking either, but if he ever really needed to do it, he would get permission first, or he "wouldn't feel that it was fair."
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Taylor Imaging
Spoke to: Dave Taylor, Creative Director
He "use[s] frames religiously." However, he never frames third-party content. Instead, if he wants to link to another site, he sets that site to open up in a separate browser window. That way, his site is still open, but the linked paged is presented in its original form. He does this "out of respect." The webmasters "designed their site a certain way," and it is not fair to display it differently. Because his links open to brand-new browser windows, users can "view the page as it was meant to be." His company has not used deep-links, and in no instance would he break a frameset to pull the page he wanted out of another site's content.
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Newcastle Technology Advisors
www.newcastleweb.com
Spoke to: John
John believes that whether or not permission is solicited for framing third-party content depends on the individual web designer. Frames pose a difficulty in that they "can be misleading." If a client wants to use frames, he counsels against it, and he suggests they get permission if they still want to do it due to concern about copyright. He says this is a "fuzzy area of copyright."
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Art Related Technology, Inc.
www.artrelated.com
Spoke to: proprietor
He uses frames more often than not, and he has always done so. He always gets permission for linking and for framing, even though he normally has outside pages open in new browser windows. His reasons for doing so include legal concerns and concerns about clients having broken links. He bills for all of the time he spends, including the time taken to get authorizations.
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Active Window Publishing
Spoke to: proprietor
He generally stays away from frames unless the client insists. He says he is not too worried about third-party framing or deep-linking because he has never heard of any problems with either. He does make a distinction, however, between cases where the framing is clear and where it is misleading as to the source of the page. Even though he was sued in 1993 by several commercial sites for embedding pages within his own, he believes that the industry shift is towards expecting links and framed sites, so that it should not be a problem.
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Centermedia, Inc.
Spoke to: Kelly Blazes
She always gets permission for everything from linking to framing. Usually she does this as a courtesy. It is her opinion that "most professionals would get permission first," before framing someone else's web content.
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ITEC Web Designs
Spoke to: proprietor
He has never framed to third-party content, but he would think that doing so would raise ethical and legal issues. His inclination is to avoid using frames altogether. He could not think of any sites that frame third-party content. In his view, "it is pretty obvious that there are things one should not do," and that includes framing someone else's web page.
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Appendix B
Interview with Tom Bruce — founder of the
Legal Information Institute
Main Points from Interview on April 13, 1999:
Appendix C
Interview with Steve Maher
Professor at Northeastern University,
Web Publishing Instructor
Main Points from Interview on April 13, 1999: