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One of the central features of the Web is the ability for each Web page to offer quick connections to other Web pages in the click of a button. There are a few different ways that websites connect with one another, each with different legal implications in the permissions context. This section discusses the issues raised when your site includes connections to other websites, and includes a sample linking agreement.
1. Linking and Framing
Two common ways websites connect to other sites are linking and framing.
a. Linking
Most often, a website will connect to another in the form of a link (also known as a "hypertext" link). A link is simply a specially coded word or image that when clicked upon, will take a Web user to another webpage. A link can take the user to another page within the same site (an "internal link"), or to another site altogether (an "external link").
EXAMPLE: At the Nolo.com website, each page offers several links to other areas of the site. For example, from Nolo's Legal Encyclopedia area on Small Business information, you can link to Nolo's bookstore. These are internal links. Nolo.com also includes links to other sites and the Small Business Administration's websites. These are external links.
Permission is not needed for a regular word link to another website's home page. If a dispute ever arises regarding linking, it can be squared away by having the linked site sign a linking agreement giving permission for the link as provided below.
b. Framing
Besides external links, another way to access other sites is by framing. Framing is a lot like linking in that you code a word or image so that it will connect to another Web page when the user clicks on it. What makes framing different is that instead of taking the user to the next page, the information from that page is imported into the original page and displayed in a special "frame." Technically, when you're viewing framed information your computer is connected to the site doing the framing -- not the site appearing in the frame.
EXAMPLE: John starts a site devoted to auto racing news called John's RacingVision. He offers a number of links to racing industry Web magazines like Autosport, and displays their content within a frame at his site. When users click on "Read Autosport News," for example, the content from the Autosport site is displayed within John's RacingVision website, in a frame. When the user reads the Autosport news, their computer is still connected to John's website, not Autosport's.
Framing is generally unpopular with websites whose content is framed at another site (unless they have agreed to it). Websites who frame the content of other sites are often seen as stealing the other site's content. One court found framing to be a copyright infringement because the process resulted in an unauthorized modification of the linked site. (Futuredontics Inc. v. Applied Anagramic Inc., 45 U.S.P.Q. 2d 2005 (C.D. Cal. 1998).) In another case, The Washington Post , CNN and several other news companies sued a website, TotalNews, which framed news content. Under the terms of a settlement agreement, TotalNews agreed to stop framing and agreed to only use text-only links.
While case law hasn't developed definitive rules on the issue, a framer is more likely to be found liable for copyright (or trademark) infringement if copyrighted material is modified without authorization or if customers are confused as to the association between the two sites or the source of a product or service.
Also beware of inlining content. Inlining (sometimes referred to as "mirroring"), which is similar to framing, involves the process of incorporating a graphic file from one website onto another website. As with framing, the site whose graphic is being used is likely to object. For example, United Media, the copyright owner of the "Dilbert" comic strip, pressured a computer user into halting daily inlining of daily comic strips taken from the United Media website. In other case involving inlining of photographs, a search engine created small reproductions (“thumbnails�) of images and placed them on its own website. A court ruled that this practice was a fair use and not an infringement because the thumbnails were much smaller and of much poorer quality than the original photos and served to index the images and help the public access them. (Kelly v. Arriba-Soft, 03 C.D.O.S. 5888 (9th Cir. 2003).) In a 2006 case, a different result was reached. A Google search engine provided thumbnails from a website that had infringing copies taken from a subscription-only website (featuring nude models). The court held Google was an infringer for displaying the thumbnails. The court distinguished this situation from Kelly v. Arriba in that in this case, the adult website made money from the thumbnails by selling them for use on mobile phones. In other words, the infringement deprived the site of income. The court also distinguished the Kelly case because Google sponsors ads that appear on third-party websites and it was possible that Google might receive revenue from people who are infringing on third-party websites. (Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006).)
Keep in mind that some forms of framing are perfectly legal. For instance, many sites use frames as a way of organizing their own content. When framing the content of another site, however, you are entering hazardous territory. Unless you know a site won't object (and preferably have their agreement in writing), you should proceed very carefully if you want to frame other websites' content.
2. Linking Agreements
The purpose of a linking agreement, like all permission agreements, is to avoid a dispute. If a webmaster is confident that a link will not create a dispute, then a linking agreement is probably not necessary.
However, the following types of links may create disputes:
- image links, particularly where the image is a trademark from the linked site
- deep links that bypass the site's homepage * links that result in framing, and
- inlining links that only pull certain elements from a site, such as an image.
The permission may be informal, such as a written statement from the distant site stating, "You have permission to link to our website's homepage using the words [insert the words in the link]. " Or, you can use a longer agreement that covers the terms more specifically.
The agreement provided below can be used to avoid disputes over any of these types of links. A copy of this form is in the Appendix at the end of this book and on the forms disk.
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Linking Agreement
This Agreement (the "Agreement") is made between ____________________ ("Source Site") with its homepage URL of ___________________ and _________________ ("Destination Site") with its homepage URL of _____________________________.
The parties agree as follows:
The Link
The Source Site will provide a link to the Destination Site as follows: _____________ ________________________________________(the "Link")
The Link includes Destination Site's URL and:
(select if appropriate)
___ Hypertext link--the words: ____________________________.
___ Image link: ________________________________________.
___ Framed link: ________________________________________.
Grant
Destination Site grants the right to display the Link at the Source Site and the nonexclusive right to display publicly the trademarks or images in the Link. Source Site obtains no trademark rights under this Agreement other than the right to display the marks. Any goodwill associated with the Source Site's trademarks automatically vests in the Destination Site.
Standards and Notifications
(select if appropriate)
___ Source Site shall maintain its site in accordance with industry standards and upon notice from Destination Site shall promptly remove the Link if required. Source Site shall promptly notify Destination Site of any change to the Link or changes to the Source Site affecting the Link.
| By: ___________________________ |
By: ______________________________ |
| Date: __________________________ |
Date: _____________________________ |
| Source Site Title: ________________ |
Destination Site Title: ________________ |
| Source Site Mailing Address: _______ |
Destination Site Mailing Address: _______ |
| email: _________________________ |
email: _____________________________ | | |
a. Explanation for Linking Agreement
- In the introductory section, insert the name of the company or person that owns the source site. The source site is the site where the link is located--that is, the starting point for the link. Once the link is clicked the user is taken to the destination site. Insert the URL (Web address--for example, www.address.com) for each site.
- In the section entitled "The Link," describe the pages that are linked. For example: "A link between the Source Site's'Other References' page and Destination Site's internal page entitled'Copyright Developments.'" Or,
"A link between Source Site's home page and Destination Site's image entitled'Two Chihuahuas' encapsulated as 2Chihua.JPG. "
Or,
"A link between Source Site's home page and Destination Site's internal page entitled'Today's News' resulting in a framed page with the frame incorporating Source site's trademarks and advertisements. "
Sometimes, the best way to describe a frame or inlined link is to provide a screen snapshot and attach it to the agreement. In that case, write in: "As attached and incorporated into this agreement" and attach the image to the agreement.
- In the next section, choose hypertext link or image link (or both if necessary). A hypertext link is a word link (usually viewed as color highlighted text). An image link should be described. If it is a trademark of the destination site, ask the destination site to supply it (usually in a GIF or JPG format).
- The Grant section permits the use of the link and related trademarks or images. The statement, "Any goodwill associated with the Source Site's trademarks automatically vests in the Destination Site" is a requirement of trademark law. It guarantees that the destination site preserves its trademark rights.
- The optional section entitled "Standards and Notification" is a further assurance sometimes required by a destination site that the source site won't operate in an unlawful manner or change the link dramatically. It offers the option of instant termination. Even if this section is not included, the Destination Site can probably force the removal of the link if it desires.
- Both parties should sign the agreement. Many of the miscellaneous provisions included in legal agreements, such as dispute resolution, are not included in order to keep the agreement lean and make it appealing for a quick signature.
b. Linking Disclaimers
To minimize liability for any activities that occur when a visitor is taken to a linked website, a webmaster may want to include a disclaimer on the home page. A disclaimer is a statement denying an endorsement or waiving liability for a potentially unauthorized activity. A sample disclaimer appears below.
Linking Disclaimer
By providing links to other sites, [name of site] does not guarantee, approve or endorse the information or products available at these sites.
A disclaimer is not a cure-all for infringement, but if a disclaimer is prominently displayed and clearly written a court may take it into consideration as factor limiting damages. For example, in a case involving a dispute between two websites for restaurants named Blue Note, one factor that helped the lesser-known restaurant avoid liability was a prominently displayed disclaimer stating that it was not affiliated with the more famous restaurant. (Benusan Restaurant v. King, 937 F. Supp. 295 (S.D. N.Y. 1996).) |
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