Website Linking, Framing, and Inlining
Every small business owner with a website should be aware that using frames, deep links and other people's graphics can lead to problems if it is not done properly. Using these website linking tricks can lead to increased business by making your website more robust and attractive. However, if you do not get the proper permissions, you may find yourself with more problems than it was worth.
Legal Issues with Linking
Almost everyone on the internet is familiar with website linking and feels that it is a prime example of how well the web works. Many people are hesitant to place any kinds of restrictions on website linking and see such restrictions as a violation of their right to speak and travel freely. However, certain business owners and other website designers would prefer not to have their website content associated with other websites, particularly competitors' websites.
Deep linking is the practice of linking to the internal pages of a website, bypassing introductory pages as well as other material that would normally precede the linked page. By deep linking into a website, a person is able to navigate to the linked page without going through introductory pages that normally include things like advertisements and banners that provide the website with income. As a result of deep linking, many small businesses have suffered because of this loss of advertisement income. In addition, when one website deep links into another website, users could be confused into thinking that the two websites are related to each other.
This issue appeared in a case where one online ticket site deep linked into Tickermaster's website. Ticketmaster sued the competition website, claiming that the deep linking constituted copyright infringement as well as unfair competition. The court ruled that the deep linking was not copyright infringement, and because the ticket site had placed a disclaimer by the link to Tickermaster, that there was no unfair competition.
However, in 2006, a judge in Texas ruled that one motocross site that was deep linking to videos on another motocross site violated copyright laws. The judge ruled that the linking did not constitute a fair use of the copyrighted materials because the website that was linked to was missing out on much of its advertisement money from its primary sponsor.
Trademarks Used in Linking
Another legal issue that has appeared recently is the use of trademarks in hyperlinks leading to other websites. A trademark can be established by either registering the mark with the trademark office, or through actual use in the marketplace. A trademark is infringed when a second user's use of the trademark, or a similar mark, would likely cause consumer confusion as to the maker of the product or service.
When trademarks are used in linking to a particular website, this could lead a consumer to believe that the offending website is related to the owner of the trademark in some way. For example, when an adult website used the registered Playboy Bunny mark to link to the Playboy website, Playboy sued and won a verdict in its favor. The court reasoned that a consumer would likely be confused as to whether or not Playboy endorsed the offending website.
Copyright Infringement in Linking
It is well known and understood that traditional website linking will almost never constitute copyright infringement. However, when someone creates a link that is likely to promote the unauthorized copying of copyrighted material, it will constitute "contributory" copyright infringement if the party that created the link knew or had reason to know of the unauthorized copying and supported it.
For example, a website posted infringing copies of an organization's copyrighted handbook and was later ordered to remove the offending materials. However, the website provided links to the offending materials on other websites and encouraged the dissemination of the materials. This constituted contributory copyright infringement because the linking party knew of and supported the unauthorized copies.
When a website "frames" something, it makes the contents of another website viewable from its own site. When one website frames another website, it may lead to legal issues involving copyright and trademark laws because the website arguably alters the appearance of the framed website. In addition, by framing another site, the framing website may give the impression that the website being framed endorses or is related to the offending website. For example, an online news website was sued because it framed the content of other major media websites such as USA Today, CNN and Time. The lawsuit settled and the offending website removed the framed content.
Inlining is an online protocol that allows a special type of link to be inserted into one webpage that allows a viewer of that webpage to see the graphic file that is hosted on a separate webpage. As one example, if a viewer of XYZ website can view the "picture of the day" from ABCD's webpage without leaving the XYZ page, then this would be an example of inlining.
There is one well known inlining case that involved the ever-popular comic strip, Dilbert. A fan of the comic strip did not like how the copyright owner of the strip had designed its webpage, so he made his own, "improved" version of the site and inline linked to the images of the Dilbert comics hosted on the owner's website. The owner of the Dilbert strip sued, claiming that the inline linking constituted copyright infringement and also arguing that if such linking were allowed, it could end up destroying the reputation of Dilbert. The lawsuit settled when the Dilbert fan agreed to remove the inline links and instead use regular hyperlinks to the owner's website.
Another interesting twist involving inlining has come with the advent of online image search engines. These problems arose when an image search engine would display the full images it found through its searches on its own webpage and not direct a user to the owner's page. A federal appeals court found that this practice amounted to copyright infringement. If an image search displays only a lower resolution, thumbnail-size image, however, the display would constitute a fair use of copyrighted materials and would be legal.
General Rule: Ask Before You Use
As a general rule, the simplest and easiest way to avoid legal problems associated with linking, framing and inlining is to ask for permission. Generally, permission is never necessary for a regular hyperlink (text link) to the homepage of another's website. When someone directs you to Google to run a search, this does not require permission. However, these types of links may require permission:
- Deep links that bypass a website's homepage and advertisements
- Links that use trademarked images from the cite that is linked
- Links resulting in framed webpages, and
- Inline links that display only certain parts of another website, often images or graphics.
If permission is granted, you and the content owner can sign a linking agreement that formalizes the understanding. This can be as formal as a written, signed contract, or as informal as an e-mail conversation.
Another way to potentially avoid legal liability is to use disclaimers with links when a website designer cannot obtain permission from the linked site. Such a disclaimer has a good chance of negating legal responsibility, but it is not as legally sound as an explicit grant of permission. A disclaimer should either inform a viewer that the website is not endorsed by the linked site or waive liability for potential unlawful activity, or both. Even though a great disclaimer may not shield you from unauthorized website linking, it may come into play later on in any legal proceedings.
For example, in a case that involved two restaurants both named "Blue Note," the court considered that the lesser known of the two restaurants had placed a disclaimer on its website that informed viewers that it was not related to the more famous restaurant.
The internet can be a great tool for businesses, but be sure to behave responsibly in order to avoid any difficulties down the line.