Introduction
The Internet is a vast network that connects many smaller groups
of linked computer networks, on and through which information
is stored and transmitted. The "interconnected" character
of the Internet is one of the things that makes it so popular
and powerful in facilitating communication and electronic commerce.
However, "interconnectivity" has also given rise to increasing
legal controversy and turmoil. Various methods of enhancing or
exploiting the web-like structure of the Internet have been attacked
as violations of others' intellectual property or other proprietary
rights. In this module, we will consider the current status
of those controversies. The Case Study
explores in some detail one recent case of this general sort.
The Readings then examine the histories
of some related dimensions of "interconnectivity."
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Study | Readings | Discussion
Topics | Additional Resources
Case
Study
Ditto.com operates a "visual search engine" on the Internet.
Like other Internet search engines, it allows a user to obtain
a list of related Websites in response to a search query entered
by the user. Unlike other Internet search engines, Ditto retrieves
images instead of text. More specifically, it generates
a list of reduced, "thumbnail" versions of photographs related
to a user's query. To see how the system currently works,
please visit www.ditto.com.
Enter a phrase in the search box and click "Search." Then
click on any of the "thumbnail" pictures retrieved by your query.
To compile its database of approximately two million thumbnail
images, Ditto uses a "spider" or "crawler." A spider is
simply an automated program that explores (crawls) the Web, looking
for information. The most common kinds of spiders are the ones
that collect web pages for search engines to index. (To
learn more about this technology, see how
Search Engines and Spiders work.) When Ditto's spider
finds an image, it makes a temporary, full-sized copy of it on
Ditto's servers, then uses that copy to create a smaller, lower
resolution "thumbnail" version. Once the thumbnail has been
prepared, the full-sized image is deleted.
As you have noticed if you have visited Ditto's current site,
a user of the system is invited to "click on any picture to go
directly to it on the web." When a user accepts this invitation,
a new browser window opens, displaying the website from which
the image was originally taken and showing the image in its intended
context. An older, now superceded version of the service,
operated by Arriba Soft (the predecessor company to Ditto), worked
significantly differently, employing a process popularly known
as "inline linking." When a user of the original Arriba
system "clicked" on a thumbnail image, he or she was taken to
an "Image Attributes" page, which showed a full-sized version
of the image along with a textual description of the image, a
link to the site from which it was taken, the Arriba banner, and
Arriba advertising. The full-sized image did not reside
on Arriba's servers but was imported directly from the originating
page. However, the typical user, seeing the image surrounded
by text and advertising generated by Arriba, would assume that
Arriba had copied it.
Leslie Kelly is a photographer who maintains two Web sites.
www.goldrush1849.com
provides a "virtual tour" of California's gold rush country and
promotes Kelly's book on the subject. www.showmethegold.com
markets corporate retreats in California's gold rush country.
Approximately thirty-five of Kelly's images were indexed by the
Arriba crawler and put in Arriba's image database. As a result,
these images were made available in thumbnail form to users of
Ditto's visual search engine.
Angered by the nonpermissive use of his photographs -- and, in
particular, by the inline linking system through which they were
displayed to users -- Kelly sued Arriba for copyright infringement.
(An account of the origins of the case, colored by strong support
for Kelly's position, can be found at http://netcopyrightlaw.com/kellyvarribasoft.asp.)
Before reading the responses of the various courts that have
heard the case, try to formulate your own opinion of the proper
outcome. In doing so, consider the following questions:
1. All versions of the defendant's search engine
(including the present one) assist web users in finding images
and then downloading them to the users' own hard drives -- for
their own enjoyment or for commercial purposes. Unauthorized
copying of that sort may itself violate the copyright statute.
Should the defendant be liable for facilitating such behavior?
2. Arriba's first and second-generation systems enabled
users to "deep link" directly to the pages containing retrieved
images, and thereby bypass the "front page" of the originating
Web site. As a result, these users would be less likely to view
all of the advertisements on an originating Web site or to view
the Web site's entire promotional message. Is harm of
this sort sufficient to render the systems illegal?
3. One of the judges who considered the case reasoned
that "where, as here, a new use and new technology are evolving,
the broad transformative purpose of the use weighs more heavily
than the inevitable flaws in its early stages of development."
Do you agree?
4. A robots.txt file is a widely recognized standard
used to stop search engines from crawling a web site. It works
as a de facto automatic copyright notice for spiders.
Is it fair to infer that websites not employing this device
are "inviting" or "acquiescing" in visits by spiders?
So how was the case actually resolved? At the trial level,
Arriba prevailed. Judge Taylor of the Central District of
California ruled that, although Arriba, by displaying without
permission thumbnail versions of Kelly's photographs, had violated
section 106
of the Copyright Act, its conduct was nevertheless excused
by the
"fair use" doctrine embodied in section 107. (His full
opinion is available here.)
In February of this year, a
panel of the Court of Appeals for the Ninth Circuit reversed.
The panel agreed with Taylor's analysis concerning the legitimacy
of Arriba's creation and use of the thumbnail versions of Kelly's
images. It held, however, that the fair use doctrine did
not excuse the inline linking to the full-sized versions of Kelly's
images by Arriba's original search engine. The defendants
have sought a review of the panel's ruling by the entire Court
of Appeals, but reconsiderations of that sort are rare, so the
panel's decision is likely to be decisive.
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Readings
An Overview
The legal and technical issues involved in Web site publishing
are intertwined. To see how they fit together, please read the
following survey: Martin
J. Elgison and James M. Jordan III, "Trademark Cases Arise from
Meta-Tags, Frames. Disputes Involve Search-Engine Indexes, Web
Sites Within Web Sites, As Well As Hyperlinking." Some
of the individual issues discussed by Elgison and Jordan are explored
in more detail below:
(1) Linking
"Linking" (also referred to as hyperlinking) is the primary mechanism
by which Internet sites are connected. By simply clicking on a
"live" word or image in one Web page, the user can view another
Web page located on server elsewhere in the world, or simply elsewhere
on the same server as the original page. This system helps gives
the Web its extraordinary communicative power. However,
under some circumstances, a link may also undermine the rights
or interests of the "target" site.
(a) Avoiding Advertisements or Message by Deep Linking
Suppose, for example, that X sets up a homepage for her site.
On the homepage she places some advertisements, from which she
hopes to make some money. The homepage also contains links to
various subordinate pages, which contain content that X believes
consumers wish to see. Y then creates his own Web site, which
contains links to X's subordinate pages. The net result is that
visitors to Y's site will be able to gain access to X's material,
without going through X's homepage where the advertisements are
placed. This activity is called "deep linking." (For an
illustration of deep linking, please click here.
This will take you to a news article on www.news.ft.com
without going through its homepage.)
One of the first major cases in the law of linking arose in Scotland.
At issue was the use by one news Web site of the headlines of
another news Web site to link to the latter's stories. Read about
this case in the following article: Scottish
Court Orders Online Newspaper to Remove Links to Competitor's
Website.
A little over two years after the Shetland News decision, a California
court was presented with an analogous case. In reading about this
dispute, consider the factual, legal, and cultural differences
that might have led to its drastically different conclusion: CA
Judge Dismisses Copyright Claims Based on Linking.
Recently, a host of new cases involving linking have arisen.
The most interesting of these involve allegations of "contributory
copyright infringement." On this theory, it is asserted that Web
sites should be held accountable when they provide links that
assist Web users to engage in nonpermissive copying of copyrighted
works. The first case takes place in Holland: Scientologists'
copyright suit shapes Net liability, Dan Goodin, CNET News.com
(June 9, 1999). The second case arose in Utah: Intellectual
Reserve, Inc. v. Utah Lighthouse Ministry, Summary (Dec. 6, 1999)
In Japan, if a website links to an illegal site, such as pornography,
the web site owner could be indicted for having "aided and abetted"
the public exhibition of illegal materials.
(b) Avoiding Agree Pages by Deep Linking
Another issue arises when X sets up a homepage with an “agree”
link to prevent visitors from entering X’s site without agreeing
to various terms. Visitors to X’s page must click on “agree” to
secure that they will follow the terms of X’s homepage before
going on to subordinate pages. Y then creates a Web site that
links to X’s subordinate pages. The result is that the visitors
to Y’s site will be able to gain access to X’s materials without
promising to agree to X’s terms.
The case that most squarely presents the legal issues raised
by this practice is Ticketmaster
Corp. v. Tickets.com, Inc., 54 U.S.P.Q.2d 1344 (C.D. Cal.
2000). Ticketmaster
sought to enjoin Tickets.com
from linking to subordinate pages of ticketmaster.com to buy tickets
to concerts and other events. The link from Tickets.com bypassed
the Ticketmaster homepage, which listed “terms and conditions,”
one of which prohibited deep linking. Ticketmaster filed, among
other complaints, a breach of contract claim, on the ground that
Tickets.com had circumvented the “terms and conditions” on the
homepage. Ticketmaster argued that this case was analogous to
a "shrink-wrap license" case, where the packaging on the outside
of a product states certain terms and conditions to which purchasers,
once they open the package, are bound. [The conflicting
doctrines pertaining to this marketing strategem were reviewed
in the
second module.] Ticketmaster claims that Tickets.com
in effect had allowed users to bypass the packaging of the Ticketmaster
site.
The US District Court in California disagreed and held that this
application of deep linking was permissible. In denying
the plaintiff a preliminary injunction, the court emphasized the
fact that, unlike many web sites that make the visitor click on
"agree" to the terms and conditions before going on, ticketmaster.com
did not require any manifestation of assent. The court distinguished
this case from “shrink-wrap license” cases, because whereas the
packaging on a product is exposed and noticeable, the “terms and
conditions” on the Ticketmaster site can be overlooked since there
is no “agree” page. The court further pointed out that the terms
and conditions on the Ticketmaster site are set forth so that
the user needs to scroll down the home page to find and read them.
Hence, the court stated, users can easily go on to subordinate
pages without reading the terms and conditions. The court concluded
that mere inclusion of terms and conditions on a web site does
not create a contract with any one using the site, because there
are no facts showing either knowledge of the terms or agreement
to them. A panel of the Court of Appeals for the Ninth Circuit
summarily affirmed.
Since this decision, Ticketmaster has employed technical methods
of blocking direct access to subordinate pages, so that any link
from an outside site takes the user to the main page of ticketmaster.com.
It would appear from this ruling that deep linking that does not
circumvent “agree” pages would be free from liability. However,
this decision was made in a minute order not intended to have
precedential authority. Hence, future decisions may be necessary
to determine whether deep-linking that does not bypass an agree
page is permissible.
(2) Framing
The related practice of "framing" may also serve to undermine
the rights of Web site owners. The use of "frames" allows
a Web page creator to divide a user's Web browser window into
several separate areas. The programmer of the Web page can
dictate what goes into each frame. Commonly, a Web site designer
creates a page that at all times displays one frame containing
the name of the Web site and other identifying information.
For example, a Web site employing frames might always show the
original Web site's graphic logo on the top of the page while
allowing the user to view the "framed" site in a different frame.
(For an illustration, please visit www.totalnews.com.
Click on "US Local", then "Birmingham Post-Herald." The
latter site, you will see, is "framed.")
Persons and organizations whose sites are "framed" without permission
have objected to this practice on three main grounds: First,
they argue that Web surfers might easily be confused concerning
the relationship between the framed site and the framing site.
Second, the framing site is parasitic, unfairly deriving traffic
from the legally protected work on the framed site. Third,
the activity of framing distorts the aesthetic of the target site.
One of the first legal disputes arising out of objections of
these sorts involved Total News (http://www.totalnews.com/),
a Web site that links to several major news sites. Although the
case brought against Total News was settled (and therefore never
resulted in any substantive law), its facts provide an excellent
illustration of the difficulties presented by framing. Please
read the attached excerpt from Mary
M. Luria, "Controlling Web Advertising: Spamming, Linking, Framing,
and Privacy."
Another framing case in which the defendant prevailed is Futuredontics,
Inc. v. Applied Anagramics, Inc.. In retrospect, the outcome
probably derived from a crucial omission in the plaintiff's case:
no evidence of damage from the defendant's activities had been
shown.
The most recent case to have addressed the framing issue is Kelly
v. Arriba Soft, discussed in the Case Study, above. The
Ninth Circuit's ruling that Arriba's original search engine impermissibly
"displayed" the plaintiff's copyrighted photographs was based
in part on the fact that, through a combination of inline links
and framing, Arriba made it appear that Kelly's images were located
on Arriba's own site. Whether this ruling will be extended
to the more common case in which an entire webpage, rather than
an individual image contained therein, is "framed" remains to
be seen.
(3) Meta Tags
Web sites are written in the HTML language. This language
consists of a set of "tags" that can be used to format and arrange
text, images, and other multimedia files. "Meta tags" are tags
that have no visible effect on the Web page. Instead, they
exist in the source code for a Web page to assist search engines
in ascertaining the content of the page. Problems arise
when website designers include in their lists of meta tags the
names or descriptions of other companies.
(a) Trademarks in Meta Tags
Suppose, for example, that Coca Cola used the keyword "Pepsi"
in its meta tags. Web surfers who used search engines to obtain
information about "Pepsi" would then be directed to Coca Cola's
Web site. The gravitational power of meta tags has been diminishing
as search engines have become more sophisticated in the ways they
strive to ascertain the contents of Web sites. Nevertheless,
meta tags retain sufficient capacity to shape behavior on the
Internet to continue to generate legal controveries.
One of the first such cases was Oppedahl & Larson v. Advanced
Concepts, Civ. No. 97-Z-1592 (D.C. Colo., July 23, 1997). The
defendants were found to have no defensible reason for using the
name of Oppedahl & Larson (a law firm that had dealt in domain
name disputes) in their meta tags. By using the plaintiff's
name in the tag, the defendants were trying to capture traffic
that would gain them domain name registration fees or web site
hosting clients. The court barred them from using the name without
authorization. For more details regarding this case, please read
David
J. Loundy, "Hidden Code Sparks High-Profile Lawsuit."
By contrast, in Playboy vs. Terri Welles, Civ. No. C-97-3204
(N.D. Cal., Sept. 8, 1997) District Judge Judith N. Keep refused
to grant an injunction against Terri Welles, Playboy's 1981 Playmate
of the Year, to prevent her from using terms such as "Playmate"
and "Playboy" on her web pages and within her meta tags. The judge
ruled that the defendant was making fair use of Playboy's marks
because she was using them to describe herself truthfully on the
web site. The Ninth Circuit Court of Appeals rejected Playboy's
appeal of the ruling on Oct. 27, 1998. For more details
concerning the case, see Playboy
Enterprises v. Welles.
A recent decision in a similar vein is Bihari v. Gross.
Plaintiffs Marianne Bihari and Bihari Interiors, Inc., owner of
the service mark "Bihari Interiors," brought a trademark infringement
action against Gross, operator of a website that harshly criticized
Bihari's business practices. Among the many bases of Bihari's
complaint was Gross' use of the term "Bihari" in his meta tags.
In finding for the defendant, the district court emphasized the
fact that Bihari did not have a website of her own. Thus,
users were unlikely to experience even "initial interest confusion"
when searching the Internet for information about Bihari Interiors.
Citing Playboy v. Welles, the court further held that Gross had
used the terms "Bihari Interiors" and "Bihari," not as trademarks,
but rather in a descriptive sense to fairly identify the content
of his websites. For more information on this case, see
Bihari v. Gross.
An entirely different tone was set by Judge Spero of the Northern
District of California in a case involving two rival software
companies. A consultant employed by Forms Processing Inc.
(FPI) to "increase its prominence with search engines" allegedly
copied some of the metatags in Oyster Software's website and then
included them in FPI's website. Despite the fact that FPI,
upon being notified by Oyster, promptly removed the offending
material, Oyster brought suit alleging copyright infringement,
trademark infringement, and "trespass to chattels." Judge
Spero rejected most aspects of FPI's motion to dismiss the suit.
The most striking aspect of his ruling is his determination that,
merely by visiting Oyster's website in order to obtain the metatags
in question, FPI may have been guilty of "intentionally interfering
with the possession of personal property" (namely Oyster's servers).
This represents a potentially radical extension of the theory
of "trespass to chattels," first introduced in the Ebay case (discussed
below).
The newest decision in this category involves efforts by Victoria's
Secret to defend their famous trademark for lingerie and women's
apparel against encroachment. One of the many ways in which
Artco Equipment allegedly
misused that mark was by employing the term, "victoria's secret,"
in the metatags for websites in which Artco offered lingerie and
sex toys. In March 2002, Judge Smith of the Southern District
of Ohio brushed aside all of the defendant's effort to excuse
this conduct, concluding that the case presented classic examples
of "bait and switch" use of a trademark, "initial interest confusion,"
and trademark dilution.
(b) Generic Words
What happens when the the word used in a metatag is an everyday
term? Suppose, for example, that Coca Cola sought to enjoin Pepsi
from using “always” in a meta-tag on the web site, on the ground
that it created confusion with Coca Cola's trademarked slogan,
“Always Coca Cola." One might think that such a common term,
taken out of context, would be free for use by anyone. But
a recent decision by a federal court in Connecticut casts doubt
on that assumption. In Prime
Publishers, Inc. v. American-Republican, Inc., 160 F.Supp.2d
266 (D. Conn. 2001), Prime sought to enjoin American from using
the word “voices” in the meta-tag of the American site. The court
agreed, because it found that although “voices” is a generic word,
there was no need for American to use the word "voices" to describe
the features or qualities of its site. Prime owned a newspaper
called “Voices” and American owned a newspaper called “the Waterbury
Republican-American.” The court reasoned, to members of
the newspaper world, the word “voices” suggests the Prime
paper. Thus a likelihood exists that business advertisers and
internet users could be confused as to the source, sponsorship,
affiliation, or endorsement of the website. No proof of
actual confusion was necessary; a risk of such confusion was sufficient.
The court prohibited American from using the word "voices" in
any part of the web site including the meta-tags.
(4) Search Engines
(a) Finding Queries
Search Engines are popular web-retrieval tools that match a search
query submitted by an Internet user with the websites whose content
best corresponds to the submitted search terms. A few search
engines sell to websites the right to be placed high on the lists
generated in response to users' queries. Most, however,
create their listings automatically. This is usually achieved
as follows: The search engine constructs and activates a
"spider," also known as a "crawler" or "robot." The spider
visits web pages, reads them, follows the embedded links to other
pages, etc. Everything the spider finds is deposited in
the search engine's index. Finally, the search engine's
software sifts through the millions of pages recorded in the index
to find matches to a given query and then ranks those matches
in order of relevance. For general information about search
engines, please refer to http://searchenginwatch.com.
As the Case Study suggested, this activity
is especially likely to trigger accusations of copyright infringement
when used by visual search engines, such a Ditto.com. (For
a historical and technical perspective on visual search engines,
take a look at AltaVista's
Photo Finder service, introduced in 1998.) In such cases,
the defendants primary line of defense is likely to be the fair-use
doctrine. It is possible that, in the future, similar challenges
could be brought against search engines that prepare brief textual
summaries, typically copied from the listed websites. (See,
for example, Google.)
(b) Posting Banner Ads
Some search engines use keywords to trigger banner ads atop their
search result lists. Netscape, Excite, and Yahoo, for example,
have long been selling certain words to advertisers who want their
banner ads to appear when those words are entered by an Internet
user. Recently, these search engines have also begun selling
trademarked terms as keywords. The latter practice has given rise
to litigation.
In Playboy
Enterprises, Inc. v. Netscape Communications Corp., 55 F.
Supp. 2d 1070 (C.D. Cal. 1999), affrimed in 202 F. 3d 278 (9th
Cir. 1999), Netscape and Excite sold the terms "playboy" and "playmate"
as keyword search terms prompting banner ads for adult entertainment
sites. Playboy, which owns the trademarks in both terms, claimed
that this practice would produce both consumer confusion and the
"dilution" of its marks. The United States District Court for
the Central District of California disagreed. The court reasoned
that "playboy" and "playmate" are generic words that could be
used by a variety of companies. Furthermore, Playboy failed to
prove that users of the search-engines were likely to be confused
by the banner ads.
In a similar case, Estée Lauder, Inc. filed lawsuits against
Excite and an online cosmetic company, Fragrance Counter, Inc.,
in the United States, Germany, and France. In each case, Estée
Lauder attempted to enjoin Excite's sale of the search term, "Estée
Lauder," to an online fragrance discounter as a banner ad trigger.
In Germany, a District Court agreed with the plaintiff -- and
thus prohibited Excite and iBeauty, the successor to the Fragrance
Counter, from using the keywords "Estée Lauder", "Clinique",
and "Origins", to trigger iBeauty’s banner ads on the Excite Website.
The court also ordered Excite and iBeauty to cease the use of
the trademarks within banner ads. The court reasoned that Excite
and iBeauty had engaged in improper exploitation and unfair business
practices under German law. In the
parallel case in the United States, however, Estée
Lauder’s motion was dismissed. However, Estée Lauder and
iBeauty ended up settling in an agreement in which iBeauty voluntarily
agreed to refrain from using the Estée Lauder trademarks
as Internet keywords. Afterwards, Estée Launder and Excite
settled in an agreement in which Estée Launder’s ads will
now pop up when users enter those words.
See Beth I. Z. Boland, Daniel B. Trinkle & Christine M. Baker,
Initial
Interest Confusion” and the Use of Meta-Tags and Keyed Banner
Ads in Internet Trademark Law, 45 Boston Bar Journal 6 (Oct.
2001) for additional discussion of search-engines' use of trigger
words for banner ads.
(5) Spiders
Occasionally, spiders are used by organizations other than search
engines. Bidder's
Edge (BE) was one such organization. Until recently,
BE operated an online "auction aggregation service." In
other words, it did not itself operate a Internet-based auction,
but rather provided users links to auctions being held on other
sites. One of the sites to which BE provided such connections
was eBay, the
largest and most famous auction system in the world. To
gather and update information from Ebay, a BE spider "crawled"
into the Ebay system approximately 100,000 times a day.
Ebay objected. When negotiations broke down, Ebay brought
suit and ultimately prevailed -- not on the basis of copyright
or trademark infringement, but on the ground that the nonpermissive
searches conducted by BE's spider constituted a "trespass to chattels."
The
court's opinion is available here.
The case was appealed to the federal Court of Appeals for the
Ninth Circuit. 28 law professors submitted a brief to the
Court of Appeals, arguing that the district court's trespass theory
would unavoidably extend to linking. "Linking, like search engines,
would now seem to exist at the sufferance of the link-to party,
because a Web surfer who followed a 'disapproved' link would be
trespassing on the plaintiff's server just as Bidder's Edge was."
The professors believed that "requiring permission to link has
dire implications for free speech as well as electronic commerce."
(Please click here
to read the entire brief of Amici Curiae.) For better or
worse, this argument will not be considered by the court because
in July 2001, on the eve of oral argument, Bidder's Edge, nearing
financial and business collapse, settled the suit.
For a discussion of the difficulty of applying old legal doctrines
to new kinds of technology -- and a proposal concerning a sensible
way of handling unwanted spiders, see Maureen
A. O'Rourke Shaping Competition on the Internet: Who Owns Product
And Pricing Information?
Back to top | Introduction
| Case Study | readings | Discussion
Topics | Additional Resources
Discussion
Topics
1. Who should have won in the Ditto.com and Bidder's
Edge cases?
2. Are the social advantages of interconnectivity sufficiently
strong that the plaintiffs in all of these cases should lose?
If not, in what ways should the law limit the ability of web site
designers to make nonpermissive connections to other web sites?
3. Some observers think that the unsatisfactory ways in
which courts have thus far handled cases involving interconnectivity
demonstrate, among other things, how poorly suited traditional
intellectual-property and tort doctrines are for addressing conflicts
that arise on the Internet. In other words, these judicial
decisions are sometimes cited in support of the general proposition
that we need an entirely new legal doctrine to govern the Internet.
Do you agree?
4. Web site owners who wish to avoid "being framed" by
other sites can use HTML coding to establish strong (though not
perfect) defenses. That is, a Web page can be encoded so that
most Web browsers will not allow it to appear within a frame,
but only in its own, separate browser window. (Click
here to learn about these techniques.) To what extent
do you believe that Web site owners wishing not to be framed should
be required to employ such technical solutions before they can
seek legal redress?
Back to top | Introduction
| Case Study | Readings
| Discussion Topics | Additional Resources
Additional
Resources
Supplemental Readings
Law Primer: Copyright
Basics: If you are unfamiliar with this body of law and would
like to know more, click here to check out our copyright primer
and related links.
Law Primer: Trademark
Law. Much of the debate concerning the legitimacy of meta
tags involves trademark law. If you are unfamiliar with this body
of law and would like to know more, check out the trademark section
in the library.
Mark
Sableman, Link Law: The Emerging Law of Internet Hyperlinks.
A thorough examination of legal implications of hyperlink use
on the Internet. A long but comprehensive look at the many legal
arguments that can be made for and against users of hyperlinks.
Brad
Templeton, 10 Big Myths about copyright explained. "An attempt
to answer common myths about copyright seen on the net and cover
issues related to copyright and USENET/Internet publication."
Timothy
J. Walton, Copyright for Webmasters. This article gives a
basic description of copyright law, aimed at those who are involved
in the production of Web sites.
Timothy
J. Walton, Trademark Law for Webmasters http://www.netatty.com/trademark.html.
Same as above, but focusing on trademark law and the Web.
Jeffrey
R. Kuester and Peter A. Nieves, "What's all the hype about hyperlinking?":
Short article advocating the activity of linking and asserting
that it is "the essence of the Web". Also discusses key linking
cases and the use of state common-law claims in the Internet context.
Looks at the feasibility of applying state law to regulate Internet
activities. Concludes by commenting on recent federal attempts
to regulate the Internet through the now defunct Communications
Decency Act (CDA).
Mary
M. Luria, "Controlling Web Advertising: Spamming, Linking, Framing,
and Privacy.": In-depth article, which focuses on "the delicate
balance between protecting the rights of people and businesses
and preserving the spirit of open communication that is the hallmark
of the Web." Areas examined include spamming, linking, framing,
and consumer privacy.
Matt
Jackson, "Linking Copyright to Homepages.": Law review article
discussing linking in detail as well as related doctrinal considerations.
Provides background on constitutional basis and economic rationale
for copyright law. Primer included on how the Internet works.
John
M. Mrsich, Meeka Jun, "Terms You Need to Know: Search Engines.":
Description of how search engines work; terms used; and distinctions
among search engines, search directories, and search managers.
The
Perkins Coie Internet Case Digest: excellent and diligently
updated database of Internet case law.
The
Link Controversy Page: A very comprehensive site providing
links to articles and cases. Don't try to cover the whole site!
Just skim it to get a sense of the debate.
Meta
Tag Lawsuits: A concise overview of all meta tag cases and
links to articles and other resources. Again, you shouldn't try
to review the entire site, just skim the case overviews.
TotalNews,
Publishers Settle Suit: CNET news bulletin announcing the
TotalNews settlement.
Linking
and Liability: Nice overview of the linking controversy. Begins
by describing, in detail, the activity of linking. Then looks
at the linking issue against the backdrop of current legal doctrine
such as derivative-work rights under copyright law, the doctrine
of 'passing off', defamation, and trademark infringement. Concludes
by providing a summary of the Shetland News case.
Cases
The
Washington Post Co., et al. V. TotalNews, Inc.,97 Civ. 1190
(S.D.N.Y., filed Feb. 2, 1997): Case settled June 5, 1997. No
opinion was issued. You can see the Complaint or the text of the
Settlement.
Futuredontics,
Inc. v. Applied Anagramics, Inc., No. 97-56711, 1998 U.S.
App. LEXIS 17012 (9th Cir. 07/23/98). Court denies preliminary
injunction against AAI's use of a framed link to Futuredontics'
web site. The denial was upheld on appeal. For more information
see this article discussing the case.
Shetland
Times Ltd. v. Dr. Jonathan Willis and ZetnewsLtd., Scotland
Court of Sessions (Oct. 24, 1996): Case settled Nov. 1997; no
opinion issued. Text of Settlement.
Ticketmaster
Corp. v. Microsoft Corp. [CV 97-3055RAP] (C.D. Cal., filed
April 28, 1997): Case settled; no opinion issued. Text of Complaint.
Bernstein v. J.C. Penney, Inc., No. 98-2958-R (CD CA, dismissal
Sept. 22, 1998). Case dismissed. For a discussion of the case
see this article.
Church
of Scientology v. Dataweb et al, Case No. 96/1048 (Dist. Ct.
of the Hague, Holland, June 9, 1999). Court found ISP liable for
its customer's posting of infringing material on the Web. Liability
was found because there was notice, which could not be reasonably
doubted, of the poster's activities.
Oppedahl & Larson v. Advanced Concepts [Civil Action 97-3-1592
(D. Colo.) filed July 23, 1997]. You can see the permanent injunctions
entered with respect to the various defendants, namely Welch
and Advanced Concepts, and Professional
Website Development, Internet Business Services.
Playboy Enterprises Inc. v. Calvin Designer
Label [DCN Calif, No. C 97-3204; 9/8/97]. You can see the
Complaint
and the Preliminary
Injunction Order. Playboy Enterprises, Inc. v. Welles No.
98-CV-0413-K (JFS) (S.D. Cal. Apr. 21, 1998). Case discussion
on the New York Times Web page. Registration required. Full text
of the Decision.
Playboy
Enterprises, Inc. v. Welles No. 98-CV-0413-K (JFS) (S.D. Cal.
Apr. 21, 1998). Full text of the Decision.
Niton
Corp. v. Radiation Monitoring Devices, Inc, 27 F. Supp. 2d
102 (D. Mass. 11/18/98): Court granted preliminary injunction
against defendant, barring it from using anything in its meta
tags that would mislead visitors in a number of different ways.
SNA Inc. v. Array et al, No. CIV A 97-7158 (E.D. Pa., June 9,
1999). Enjoined defendant from using plaintiff's name in its meta
tags
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