Sometimes called in-line links, framing technology points to content elsewhere on the Web on a third party's Web site and "pulls" the content into the screen of the Web site to which the user is connected -- whether the content is a "clip" of text, audio or video. Far more interesting to analyze than unauthorized hyperlinks, unauthorized framing creates more issues by the technology which permits the Web site owner to enable users, while remaining at the first Web site, to view all or part of the Web sites of third parties -- usually "framed" or surrounded with advertising of the first Web site, often cutting off content and/or advertising of the framed Web site. The site identifier on screen will also be that of the first Web site, rather than the framed one, so this sponsor will be associated with the content of the other.

On February 20, 1997, a number of newspapers and periodicals filed suit in the Southern District of New York against Total News, Inc., challenging this practice. ²² Total News is characterized in the suit as a parasite Web site with little or no substantive content, but with considerable on-screen advertising of itself and the products and services of its advertisers. The user sees a menu consisting of third-party trademarks (Fox News, MSNBC), the Total News trademark and URL, and some content from the framed site.²³ The site apparently also contains an advertisement from the Total News advertiser, AT&T, with the opportunity to "click here" and get more advertising content from the AT&T Web site or other Total News Web pages. The complaint alleges misappropriation, trademark dilution and infringement, "willful copyright violation" and other tortious acts such as false advertising. In a single sentence, the plaintiffs challenge the Total News practice: "Defendants have designed a parasite Web site that republishes the news and editorial content of others' Web sites in order to attract both advertisers and users." It has even been suggested that the plaintiffs might have a cause of action for tortious interference with contracts between the plaintiffs and their advertisers.

When the Washington Post posts its materials on the Web, it gives an implicit license to browse (how else can it be seen?). The trouble with implicit licenses is that their terms are unknown. Can the user only browse at the Washington Post Web site or through the Total News frame? Can the Post tell you where to read the newspaper after you have it delivered or get it at the local newsstand?

Technology may overtake law before we known the answer about framing. The Total News case has been settled on the basis that hyperlinks may continue to be used, but only text links (no logos), and framing will cease; as a result, there will be no decision for some time on this important issue. ²⁴ An addendum to the settlement listed over 150 sites that may not be framed by the defendants and the defendants agreed not to 'directly or indirectly cause" the plaintiffs' content to appear on the same screen with any material associated with the defendants, whether by text, graphics, pop-up window, or audio or video.

It is already clear that framing can be prevented by technical means and some site owners have implemented this technology. It is somewhat harder to prevent linking altogether -- to say nothing of whether any site owner would want to do this. It is also possible to technologically prevent a link from by-passing the title, index page or other authorized entry points; however, it is implausible that any site owner will want to force all users (not just those entering the site through links) to navigate particular paths once within the site and see all ads.

In sum, any link to another site that does not make use of characters, logos or third party trademarks fits with the purpose of the Internet, which is networking. Even with framing, where the boundaries of the frame are clear and the site owner's other content and advertising is clearly separate, it is harder to argue that this is a violation of the site owner's rights.

(22) "Publishers Settle Dispute Over Framing with Web site Owner," Intellectual Property Litigation
     Reporter, July 2, 1997, p. 11.

(23) Id.

(24) See Id.