Every website developer should know when using deep links, frames, and others' graphics is allowed, and when it can lead to trouble.

Using deep links, frames, and others' graphics on your site can make it appear more robust and provide a better user experience, but it may not please the affected website owners.

Linking

Linking is so fundamental to the functioning of the World Wide Web that many users feel that any legal restriction on their use of links is a violation of the right to travel and speak freely in cyberspace. But many businesses who don't want their valuable content associated with or connected to certain sites are far less enthusiastic about some aspects of linking. Here, we briefly discuss some of the legal principles that may limit the right to link.

Deep linking. Deep linking allows visitors to bypass information and advertisements at the home page and go directly to an internal page. As a result, linked-to sites can lose income, because their revenues are often tied to the number of viewers who pass through their home page. Some businesses also dislike the practice because it may mistakenly create the impression in a user's mind that the two linked sites endorse each other.

However, there is no law prohibiting deep linking, and no U.S. court has prohibited the practice. In one case decided in March 2000, a federal court ruled that the use of deep links did not violate copyright law. In this case, Tickets.com, an online ticket service, provided deep links to Ticketmaster pages to provide users with certain ticket purchases. Tickets.com prefaced the link by stating "These tickets are sold by another ticketing company. Although we can't sell them to you, the link above will take you directly to the other company's web site where you can purchase them." This disclaimer eliminated the claim of unfair competition as well, because there was no confusion as to the source of the ticket purchase. Ticketmaster Corp. v. Tickets.Com, Inc, 2000 US Dist. LEXIS 12987 (2000).

Trademark infringement and dilution. First the basics: A trademark is any name or graphic image that identifies and distinguishes products or services: a word such as "Kodak," a graphic image such as the "Ask Jeeves" butler, or a combination of elements such as the colors, lettering, and graphics used to distinguish Ebay.com from other online auction sites. Trademark infringement occurs when a second user's use of the trademark is likely to confuse consumers as to the origin of products or services.

The use of a graphic trademark -- for example, the Playboy bunny logo -- to link to the trademark owner's site is sometimes a risky proposition. Unlike the use of a simple word link, a consumer is more likely to be confused into believing that the linked site (the site that owns the graphical trademark) is associated with or endorses the site doing the linking.

EXAMPLE: An X-rated website used the Playboy name and bunny logo to link to the Playboy website. Playboy sued and proved that users of the site may be confused as to whether Playboy sponsored or endorsed the adult site. Playboy also proved that its trademarks would be blurred or tarnished by the association with the adult site. Playboy Enterprises, Inc. v. Universal Tel-A-Talk Inc., 1998 U.S. Dist. LEXIS 17282 (E.D. Pa. 1998).

Copyright infringement. Although it is not a violation of copyright law to create a hyperlink, it is a violation of the law to create a link that contributes to unauthorized copying of a copyrighted work if the linking party knew or had reason to know of the unauthorized copying and encouraged it.

EXAMPLE: A website posted infringing copies of a church's copyrighted handbook at its site. The website was ordered to remove the handbook but subsequently provided links to other sites that contained infringing copies of the handbook. These links were different from traditional hyperlinks, because the website knew and encouraged the use of the links to obtain unauthorized copies. The linking activity constituted contributory copyright infringement. Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc, 75 F. Supp. 2d 1290 (D. Utah 1999).

Framing

"Framing" is the process of allowing a user to view the contents of one website while it is framed by information from another site, similar to the "picture-in-picture" feature offered on some televisions. Framing may trigger a dispute under copyright and trademark law theories, because a framed site arguably alters the appearance of the content and creates the impression that its owner endorses or voluntarily chooses to associate with the framer. In one case, TotalNEWS framed news content from media outlets such as CNN, USA Today, and Time. For example, the content of a CNN Web page appeared within a frame packed with advertising and information about TotalNEWS. The lawsuit settled, and TotalNEWS agreed to stop framing and to only use text-only links.