In a subsequent court fight involving two dental websites, Applied Anagramic, Inc. framed the content of a competing site. The frames included information about Applied Anagramic as well as its trademark and links to all of its Web pages. A district court ruled that the addition of the frame modified the appearance of the linked site and such modifications could, without authorization, amount to infringement. Futuredontics Inc. v. Applied Anagramic Inc., 1997 46 USPQ 2d 2005 (C.D. Calif. 1997).

Inlining

"Inlining" is the process of displaying a graphic file on one website that originates at another. For example, inlining occurs if a user at site A can, without leaving site A, view a "cartoon of the day" featured on site B. IMG links -- a special type of link -- can be used to display graphic files on one site that are stored on another.

In one well-known episode, Dan Wallach, a fan of the Dilbert comic strip, did not like the design of the official Dilbert site owned by United Media and designed his own, The Dilbert Hack Page. He used IMG links to display the cartoon images from the United Media site so that a visitor to the Dilbert Hack Page viewed Dilbert cartoons (inlined from the United Media Page) within Wallach's "improved" page design. United Media demanded that Wallach stop, because the display violated copyright law and the process could destroy the integrity of the comic strip (if, for example, the strip were displayed at an adult or racist site). The parties avoided a lawsuit when Wallach agreed to drop the IMG links and replaced them with traditional hypertext links to the United Media home page.

Subsequently, in 2002, a federal court of appeals ruled that an image search engine violated copyright law when it used inline links to reproduce full-size photographic images. Smaller inlined "thumbnail" reproductions were permitted, however, based on fair use principles. Kelly v. Arriba Software, 280 F.3d 934 (9th Cir. 2002).

Getting Permission

The simplest method of avoiding linking, framing, and inlining problems is to seek permission. As a general rule, permission is never required for a hyperlink to a site's home page that uses highlighted text (a text link). For example, highlighting the word "Yahoo!" as a link to the Yahoo! home page does not require authorization and will not cause a dispute. But, since the following types of links may cause disputes, it makes sense to ask for permission:

• deep links that bypass a linked site's home page
• graphic links comprised of trademarks from the linked site
• links that result in framing, and
• IMG links that pull only certain elements from a site (such as an image).

Once permission is obtained, you can sign a linking agreement. A linking agreement can be as informal as an email authorization stating, "You have permission to link to our website's home page using the words [insert the words in the link]."

Using Disclaimers

If a website owner is concerned about liability for links but is unable to obtain, or unwilling to seek, permission from the linked site, a prominently placed disclaimer may reduce the likelihood of legal problems. A disclaimer is a statement denying an endorsement for or from another site or waiving liability for a potentially unauthorized activity. A disclaimer is rarely a cure-all for legal claims, but, if a disclaimer is prominently displayed and clearly written, a court may take it into consideration as a factor limiting damages.

In some cases, such as trademark disputes, it may help prevent any liability. 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. NY 1996).

To minimize liability for any activities that occur when a visitor is taken to a linked website, a webmaster may want to include a linking disclaimer on its home page or on any pages with otherwise troublesome links.