Web Link Lawsuits Raise Serious Questions

Comments of the EFF on Web Content Linkage Lawsuits (Mar. 17, 1996)

In an action similar to a (settled) legal threat over "inlining" of copyrighted comic strip graphics in a third party web page, a host of publishing companies have filed suit in New York City federal district court against a company called TotalNews. TotalNews uses the experimental "frames" extension to HTML code to point their site's visitors to various news sources around the Web. CNN, Washington Post, Dow Jones, Times Mirror and Reuters, who have filed the suit, allege that TotalNews' practice of displaying the content of the various companies' news sites within a "frame" with TotalNew's banner ads, is a violation of the companies' rights.

It is not at all clear that such a practice is infringing in any way, under copyright law. The intermediary site, TotalNews, does not actually make any copy of content from CNN, et al, but rather simply instructs the user's Web browser to obtain the content direct from CNN, et al., and to display that content within an ad-bearing from provided by TotalNews.

There is essentially a conflict between two theoretical approaches to copyright: one that says claims of infringement should be interpreted based on what *functionally* is occurring (that is, on whether it *functions* just like a traditional infringment) and another that says the issue of infringement turns on what is technically true about the facts -- e.g., whether an actual, unlicensed copy was made by the defendant. Each alternative is "reasonable" (in that they are both consistent with most prior cases), and yet "unreasonable" in that either may result in rulings that have negative consequence for Internet users. As with many other areas of the law, now probably is just not the time to settle these issues governmentally, as the technology is moving too rapidly for any branch of government to keep up.

Because the law of course does not recognize any distinction between HTML code making use of Netscape & Microsoft proprietary "frames" capabilities^[*], and that which does not, it will be very difficult for a judge to issue a ruling in favor of the plaintiffs that will not seriously harm the public interest by restricting much or all Web linkage.

[* Frames are now a part of the HTML 4 standard, and no longer proprietary extentions. - editor@eff.org, Feb. 26, 2002.]

The plaintiffs allege more than simply copyright infringment in the TotalNews case, also claiming the practice infringes trademarks, constitutes misappropriation, and trademark dilution. Some of these claims may have merits, depending upon the facts discovered in this case. EFF does not address most of these claims. But, the underlying premise that because TotalNews is not providing its own content and is simply pointing to others' content, is untenable. Under such logic, any directory of pointers to other sources of information could be illegalized, in any medium.

There is of course no guarantee that courts will carry such cases very far, much less fail to fully understand what is at stake and therefore issue harmful but precedent-setting rulings. The danger is there, however, and is a grave one due to the very complicated nature of Web protocols, and due to how poorly these facts map onto aging copyright law.

EFF calls on the participants in such disputes to please keep the interests of the public in mind. In particular, it is the position of EFF that:

1. There are technical and industry-standards methods, as well as legalistic means, of dealing with the problem of linkage of material in such a way as to obscure the original source.
2. Sites using such links in a deliberately misleading manner should be critized and exposed as plagiarists (and possibly trademark infringers in some cases). Whether there is any copyright issue here that can be defended without serious harm to the public interest is highly questionable.
3. Technical solutions can solve this problem in a far less dangerous manner than lawsuits, e.g. by working with the issuers of draft standards to ensure that they work better and hamper others' rights as little as possible if at all, and/or by protecting one's own content from random outside linkage by usage of visitor registrations or subscriptions using login IDs and passwords.
4. When dealing with new and rapidly-changing technology, disputes of this nature are best settled by carefully considered arbitration or bilateral compromise, in private, rather than in the judicial system, where decisions can have long-lasting precedence and disastrous fallout.
5. If any such case should proceed in the courts, all parties to the suit should go to great lengths to educate the court about the Internet and the Web, and how they operate, in sufficient technical detail that judge and jury understand the mechanism by which content is referenced and copied, from whom, to whom.

EFF recognizes that intentionally plagiaristic abuse of inlining and frames within web pages is a valid issue of concern. However, this would not appear to be the modus operandi of the vast majority of users of this technology, including TotalNews, which serves as an index of and jumping-off point to online news sources, much the way Yahoo or HotBot provide links to other sites. The only difference (barring actual trademark infringement, of which we are unaware) would appear to be presentation. The presentation issues are principally an artifact of the technology, and it may be incumbent upon the WWW standards community to seek solutions to what must be viewed by intellectual property holders as a form of security hole, even if others find it to be a useful feature.

EFF does not presume to offer a magic bullet solution to the problems. Perhaps frames are simply too troublesome and should be abandoned. Maybe content providers must yield and acknowledge others' right to build directories that frame the target content. The real answer probably lies in the middle, perhaps in the creation of a framing/inlining permissions protocol, or in the adoption of password protections by content providers.

Incidentally, EFF would like to observe that this kind of dispute, which grows beyond its bounds and poses risks to the health of the Net and to the rights of all users, is a powerful argument against willy-nilly, widespread, public alpha-testing of experimental extensions to accepted standards. It may be that such extensions, like unstable software, should be tested and reviewed in more private, controlled circumstances. It may be a good idea to include in this process review by attorneys and policy analysts with an eye to ferreting out and fixing legal difficulties that may arise, before public release and implementation cause crises of this sort.

It is incumbent upon the participants in this medium to create industry practices and new forms of netiquette that allow one to make full responsible use of new technologies while still respecting copyright and trademark holders. Courts cannot do this for us.

[Slightly revised, Feb. 26, 2002.]

Please send any questions or comments to webmaster@eff.org.