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.
The following information will get you up to speed on these issues. See FindLaw's Internet and E-Commerce section to learn more.
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.
1. Deep Linking
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 (such as advertisements). As a result, many small businesses have suffered because of this loss of ad income. In addition, when one website deep links into another website, users could be confused into thinking the two websites are related.
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.
2. Trademarks Used in Linking
Another legal issue that has appeared recently is the use of trademarks in hyperlinks leading to other websites. 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.
3. Copyright Infringement in Linking
It is well 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 had reason to know of the unauthorized copying.
When a website "frames" something, it makes the contents of another website viewable from its own site. Framing may lead to legal issues involving copyright and trademark laws because the website arguably alters the appearance of the framed website. Also, the framing website may give the impression that the site being framed endorses or is related to the offending site.
Inlining is an online protocol that allows a special type of link to be inserted into one webpage that allows a viewer of that page to see the graphic file that is hosted on a separate webpage. For 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.
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 way to avoid legal problems associated with linking, framing, and inlining is to ask for permission. Permission is rarely necessary for a regular hyperlink to the homepage of another's website, but these types of links may require permission:
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 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.
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.
Confused? Consider Calling an Attorney
As a business owner, you are expected to wear multiple hats and spin an ever-increasing number of plates in order to become successful. But legal issues tend to be quite complex, while legal disputes can potentially put you out of business. If you have questions about the use of linking, framing, or inlining on your website, you may want to speak with a business and commercial law attorney specializing in web technology.