The practice of advertising on the Web has definitely taken hold.  In fact, companies looking to capitalize on this new pipeline to potential customers arguably have been responsible for the rapid and unbridled growth the Internet has enjoyed.  However, there are those who argue that the effectiveness of Internet advertising, and hence continued growth, is being threatened by at least four types of activities, namely framing, linking, meta tag misuse, and caching.

The activity of "linking" is just that: the use of a hypertext link on one website to transfer surfers to a particular point on another site.  For this introduction, we'll call the site being linked to the 'target site' and the site containing the hypertext link the 'source site'.  This practice is so prevalent that it is virtually impossible to maneuver on the web without employing it.  Problems occur, however, when a link takes a surfer to a subordinate page (also known as "deep linking") on the target site or through a path which otherwise circumvents paid advertisements.  The fees being paid by the sponsors of the target site are based on the simple assumption that site visitors will see the ads as they navigate their way through the site.  When source sites link to target sites in such a way that surfers are re-routed around the ads, that assumption is threatened.  Not only does "deep linking" implicate advertising concerns, but it may also undermine the expectations of website authors.  For example, deep linking to an article on a news site not only deprives the target site's sponsors of expected exposure, but it also inhibits the ability of the site's author to properly identify herself or otherwise to take credit for the article.

The related practice of "framing" may also serve to undermine web advertising.  Ads are sometimes presented in "frames" that surround the web page itself.  This allows advertisements or other framed information to remain constantly visible while the visitor navigates his or her way through the site.  Controversy arises when both the source and target sites use frames.  In such a case, the source site may use its own frames to obscure or cover up the target site's frames.  Thus, a visitor following a link from a framed source site to a framed target site will see only the source site's frames, and hence ads.  Thus, as with deep linking, the target site's sponsors are being deprived of the exposure for which they paid.

Meta tag misuse, the third issue we'll address in this module, arises when websites include in their meta tag list, the names of other companies and/or products.  This practice, of which we’ll see an example later, results in directing searches, and hence potential customers, to sites that may or may not be related to the search term used.

Finally, although not covered in our weekly Hypothetical Case Study, we will also take a brief look at the activity of “caching”.  Caching involves the activity of storing Web pages either in your computer’s local RAM, or at the server level.  Caching Web pages on your computer’s local memory allows you to navigate back and forth through pages you’ve visited without having to download the pages each time you come back to them.  Caching at the server level, also known as “proxy caching”, is used by several of the more popular Internet service providers such as AOL, Prodigy, and Compuserve.  The advantages and disadvantages of both types of caching will be further explored in this week’s readings.
 
 

Sharon has owned a small but profitable travel agency for ten years. Recently, however, she has been losing business because customers have been purchasing their tickets directly from airlines' Web sites. She has been told that travelers like the ease and control of seeing a choice of itineraries and prices, and being able to search for the lowest prices themselves. Some customers have always believed that, since travel agents work on a commission, they don't always take the time to find or offer the lowest fares, but they had used Sharon in the past because it was easier than spending time on hold on the airline's 800 number. Now that customers have instantaneous, 24-hour access to the airlines and can use search engines that cater to their specific needs, they don't have much use for Sharon's services. Sharon realizes that to stay in business, she must offer something to customers that they can't get from the airlines. She is also a savvy businesswoman and wants to benefit from the global exposure the Internet can provide, so she decides to launch an Internet-based travel agency.

Six months ago, Sharon decided that, to maximize the appeal of her new business, she should offer comprehensive travel services -- a sort of one-stop shopping for a customer's travel needs. She has always provided customers brochures on popular destinations and attractions, as well as hotel bookings, car rental reservations, and ticketing services for cruises. Now she would like to supply travelers the other things they need:  travel insurance, luggage and other travel paraphernalia, leisure clothing, even pet-sitting services. She hired a Web page designer to showcase her business most effectively. Two months ago, she launched her new, extended business on the Internet. Since then, she has enjoyed enormous success; she has had to hire another agent to help her with the flood of bookings. Busy travelers enjoy being able to take care of everything on their vacation "to-do" list in one fifteen-minute visit to Sharon's Web site. However, various other businesses object to Sharon's innovations and have threatened suit. Sharon describes to you the following three challenges she is facing and asks your advice.
 
 

To begin with, in her effort to provide her customers a comprehensive set of travel services, Sharon included links on her site to information posted on other sites.  For example, a customer who needs someone to take care of her pet while she's away on vacation can click on a picture of a dog on Sharon's site and get information from a site offering pet-sitting services.  Similarly, the customer could select her travel destination from a map provided by Sharon, then click on a picture of food and receive restaurant reviews from the web site of a newspaper in that area.  Sharon has provided dozens of these links, offering access to weather reports, entertainment reviews, public transportation schedules -- everything a traveler would want to know about her destination.

Two of the companies to whose sites Sharon has provided links have threatened to file suit if she does not disable the links.  One of them is While the Cat's Away (WCA), a major pet-sitting service with franchises in most major cities.  WCA claims that Sharon's link to its site is unfair competition. Because Sharon's links are geared to specific geographical areas, the customer goes directly to the page on WCA's site representing that area, bypassing WCA's home page. WCA sees this use of "deep links" as a problem, because most of its banner ads are on its home page. Banner ads are the primary source of revenue for the WCA site, and they fear that if the practice of deep linking were to continue, advertisers would be less likely to pay money because they could not be sure their ads would be seen.

The other company threatening to bring suit is The Tahoe Monitor, a weekly newspaper in Lake Tahoe, California. Tahoe's publishers claim that Sharon's link to their restaurant reviews violates their copyright in the articles because she is, in effect, reproducing their copyrighted work.  Sharon argues that she is doing no more than giving her customers the means to access information that Tahoe has already voluntarily posted on the Web for any one to read.
 
 

Sharon’s second challenge arises from the fact that her site links to these related sites using frames.  For instance, if a traveler wants to purchase luggage for an upcoming vacation, she can click on a link on Sharon's web page that calls up the web site for Irontight Luggage within a frame on the screen. The traveler can view the information on these linked sites without first having to leave Sharon's site and then return by pressing the "back" key. This is a major convenience for visitors to Sharon's site, but Irontight is upset. When Irontight's web page is displayed within Sharon's frame, advertising banners on Irontight's web page are obscured by banners of Sharon's advertisers. Irontight's advertisers have paid for the privilege of advertising on Irontight's site because they feel that Irontight customers will also be interested in their own products and services. Sharon's framing enables people to view Irontight's site without seeing this advertising information, and indeed may direct viewers to the advertisers' competitors. Additionally, the framing allows visitors to stay at Sharon's site and view Irontight's information, rather than "jumping" to Irontight's own site. Irontight alleges that this is unfair competition. Sharon believes that she is just providing a convenience to her customers that adds value to her service.
 
 

Lastly, when Sharon was working with the web designer to produce her site, she indicated that she wanted people looking for travel services to be able to find her.  The designer told her that if someone were using a typical Web search engine to locate travel services, the engine would recognize a lot of the information on Sharon's site as travel information, and therefore that her site would make it onto the list the searcher received.  However, the designer cautioned her, there was no guarantee that she would be among the first listed, and many searchers only browse a page or two of the results generated by the search engines. To avoid her site getting dropped to the bottom of the list, he suggested that she insert multiple copies of special keywords into the underlying code of her site. The most effective keywords for this purpose are popular vacation destinations (Maui; Aruba; etc.) and the brand names of major airlines and cruise lines (TWA; United; Carnaval; etc).  The reason is that someone using a search engine to find information on those destinations or airlines would also retrieve a listing for Sharon’s site.

Northeast Airlines has filed suit against Sharon for using its name in this hidden code, called "meta tags," alleging unfair competition, trademark infringement, and trademark dilution. Northeast claims that Sharon’s use of its trademark without permission infringes on their rights in the mark and confuses consumers into thinking that Sharon’s service is associated with its airline.  In addition, Northeast claims that Sharon’s unauthorized use of the mark blurs the image in the minds of consumers that it has invested much in cultivating.

In deciding whether Sharon is or should be vulnerable to these suits, you should familiarize yourself with the Required Readings below.  You should then be ready to tackle this week's assignment.  If you feel you need more information or are just still curious check out the Resources section near the bottom of this page.  You are also encouraged to explore the Discussion Topics in the threaded discussion section.
 
 

Demonstrations

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.

To see an example of metatag keywords, click on the following two links. For each one, when the document has entirely finished loading, right click on the page and select "Page Source" or "View Frame Source" on the pop-up menu. A new window will come up, revealing the HTML code used to create the Web page. Remaining near the top of the document, scroll to the right until you see meta name="keywords" content=. The information following "content" will be the keywords the website operator intends search engines to utilize. For these two links, note the companies listed.
 

• Business appearing near top of search list using keywords "Northwest" and "TWA"
• Travel company called up during search on "Disney"

General Material

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."

MichelleSpaulding, "Misappropriation" (1998). Although not mentioned by courts as of yet, the law of Misappropriation has been looked to by legal scholars for guidance in this area and may play a role in the future of cyberspace law.  This article provides a brief introduction. [The cases cited in the article are NOT required reading].
 

Materials on Linking

Can you be legally liable for hypertext linking?

Scottish Court Orders Online Newspaper to Remove Links to Competitor's Website.

CA Judge Dismisses Copyright Claims Based on Linking.

Microsoft's Link to Ticketmaster Site Spurs Trademark Lawsuit.

Ticketmaster, Microsoft settle Web link suit.
 

Materials on Framing

Mary M. Luria, "Controlling Web Advertising: Spamming, Linking, Framing, and Privacy.":  Please see the excerpt on framing.  For optional reading, you can access the entire article under the Resources section.

Futuredontics, Inc. v. Applied Anagramics, Inc.
 

Materials on Meta Tags

How Metatags Can Infringe Trademarks Without a Trace; New Internet Claim Stretches Fabric of Existing Law

David J. Loundy, "HiddenCode Sparks High-Profile Lawsuit."

Playboy Enterprises v. Welles
 

Material on Caching

Cache-22:  Describes the activity of caching and its effects on the Internet, both positive and negative.
 

New Developments

Excite Sued Over Sale of Advertising Space:  In this first-of-its-kind suit, Estee Lauder is claiming that Excite has violated its trademark by selling advertising space to Estee Lauder's competitors, where the ads sold are linked to the search term "Estee Lauder".  Playboy has also filed a similar suit against Excite.
 
 

Note:  If you are a member of group A, you should submit your assignment answer at the time and in the manner specified by the Teaching Fellow for your section.  If you are a member of group B, you are not required to submit an answer to the assignment.  However, members of group B should feel free to respond to the assignment in Thread #11 of the Plenary Conference devoted to this module.

This week's assignment will draw on the hypothetical case study.  You are charged with the task of defending Sharon against the complaints brought by WCA, The Tahoe Monitor, Irontight, and Northeast Airlines.  Write a paragraph or two responding to each complaint, arguing why Sharon should be allowed to continue her linking, framing, and meta tag activities.  You should use both legal and public policy arguments in defending Sharon.  If the law doesn't seem to be on your side for one or more of the complaints, you may want to spend more time arguing what the law should be, and most importantly, why.  Since the law is, for the most part, unsettled in these areas,  feel free to be creative in your arguments.

Reaction:

For the second part of this week's assignment (the part due Thursday), you will be responding to the arguments made by one of your fellow group members. Write a brief rebuttal to each of the arguments you receive.
 
 

1. If you were to create a copyright and trademark law for the Internet today, what would it be?  Would your law prohibit linking,   downloading, or just downloading for resale?  Would you include a provision allowing copying for educational uses only?  Would you prohibit deep linking where the identity of the target site or author is difficult or impossible to discern?  What other provisions do you feel should be included?

2. The Bernstein case represents the first copyright infringement suit brought against someone for linking to other sites that display infringing materials.  The court dismissed the case, but does it seem right that someone should be able to free ride on someone else's illegal copying?  What about a direct link to material which is obviously illegally copied?

3. Linking has become so prevalent on the Internet that it would be hard to imagine the Web without it.  However, should website authors have the right to restrict the way in which their work is linked to?  Suppose an artist has posted scanned images of her art and arranges them in her site in a very specific manner so as to convey a particular message and elicit a particular mood.  Should she have the right to prohibit someone from linking to one of her works in the middle of the site, and not in the particular order she had intended them to be viewed?

4. If you were charged with the unenviable task of defending the practice of framing, how would you argue? Do you think there is anything to the idea that once you post information on the web, it is quasi-public by virtue of the very nature of the Web and its emphasis on the free flow of information?  If so, can this be used to defend framing?

5. Some search engines, notably Excite, don't use Meta tag information in their indexing. Is this a better way of dealing with meta tag misuse, rather than expanding trademark law or some other legal doctrine?

6. The two Playboy cases we were introduced to in the readings are Playboy Enterprises Inc. v. Calvin Designer Label and Playboy Enterprises Inc. v. Welles.  Why did they come out so differently? Should they have been decided the same way?

7.  Are the courts or Congress better suited to deal with the cyberspace issues of linking and framing?  What makes one superior to the other in the context of cyberlaw?

8.  Does the fact that the Internet is global in nature affect the way the United States should address the issues of linking, framing, and meta tag misuse?  If so, what should it do differently in order to take into account the concerns of the international community?

9. Given what courts have done thus far, how do you think they will decide the recent cases brought by Estee Lauder and Playboy against Excite?  Does this marketing tactic seem contrary to fair competition or is it just another way a company should be able to advertise?

10. If you were charged with the task of developing a universal caching standard what form would it take?  Based on the pros and cons outlined in this week’s reading and those which you think were left out, what would be a rational compromise to the dilemma?
 
 

Supplemental Readings

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 our trademark section in the library.

Tim Jackson, "The Case of the Invisible Ink.": This article discusses the idea that trademark infringement claims such as the one in the Oppedahl and Larson case are attenuated.  It suggests that surfers will not be mislead or confused in the sense that trademark cases are generally thought of.  The article concludes by downplaying the role that meta tags will have in the long run, given the fast-paced development of 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.

"Computing and the Net: Shetland showdown Duncan Campbell on a good day in court for the Web." Duncan Campbell: Editorial highlighting the fact that the Shetland News, if not settled, would have had a significant impact on the entire Internet community. Also criticizes Shetland News for bringing suit.

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.

John M. Mrsich, Meeka Jun, "TermsYou Need to Know: Search Engines.": Description of how search engines work; terms used; and distinction among search engines, search directories, and search managers.

Meeka Jun, "MetaTags: The Case of the Invisible Infringer.": Short article discussing the Playboy Enterprises Inc. v. Calvin Designer Label case.

Caching on the Internet:  Comprehensive discussion of the activity of caching.  Describes types of caching, drawbacks and benefits, and the role of copyright law.

Frequently Asked Questions about Caching:  Question and answer format discusses the technical side of caching including privacy and security issues.
 

Supplemental Hyperlinks

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

Unauthorized Linking Prohibited in Framing Suit Settlement: Short article discussing the settlement in the TotalNews case. Also provides links to related stories and court filings. Links to a discussion of the Ticketmaster case.

Judge Enjoins Web Site's Use of Infringing Meta-Tag: Article discussing the Playboy Enterprises, Inc. v. Calvin Designer Label case. Contains links to the complaint and order issued in the case.

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.
 

Case Materials

Framing Cases:

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.

Linking Cases:

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.

Meta tag Cases:

Insituform Technologies Inc. v. Nat’l Envirotech GroupL.L.C. [Civil Action 97-2064 (E.D. La.); settled Aug. 27, 1997]: No opinion issued. You can see a case discussion by the firm that represented Insituform Technologies.

Oppedahl & Larson v. Advanced Concepts [CivilAction 97-3-1592 (D. Colo.) filed July 23, 1997]. You can see the Complaint and the permanent injunctions entered with respect to the various defendants, namely Welch and Advanced Concepts, MSI Marketing, Inc., Professional Website Development, Internet Business Services, and Williams.

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.

No Special Event this week.