Hypothetical Case Study
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In the past several years, the World Wide Web has seen two significant changes: (1) its popularity and use have exploded, and (2) it has become a place of substantial commercial activity. These two characteristics have made the Web a place of increasing legal turmoil. Certain practices by authors of Web sites and pages have been attacked as violative of others' intellectual property rights or other entitlements. These practices, which are the topic of this unit, include "linking," "framing," meta tag use, and "caching".
"Linking" allows a Web site user to visit another location on the Internet. By simply clicking on a "live" word or image in one Web page, the user can view another Web page elsewhere in the world, or simply elsewhere on the same server as the original page. This technique is what gives the Web its unique communicative power. At the same time, however, linking may undermine the rights or interests of the owner of the page that is linked to. 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 ever seeing X's advertisements. This type of activity is called "deep linking." Other problems arise when one site contains links to copyrighted materials contained in another site against the wishes of the copyright owner. Though the person who provides the link may not be making copies himself or herself, some courts have recently found the link provider partially responsible for ensuing copyright infringement.
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 the Web browser window into several separate areas. (Click here to see a page employing frames) 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. The other frames are then controlled by the user. 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 NPR Web site in a different frame. (To see this example in use, click here, then click "NPR" to see the NPR Web site "framed.") The legal implications of this are complex. In the example just given, a Web surfer might easily be confused concerning the relationship between NPR and the framing site. Moreover, the framing site might be unfairly deriving traffic from NPR's legally protected work.
Meta tag misuse, the third component of this module, may generate less obvious but equally serious problems. Web sites are written in the HTML language. This language is nothing more than a list 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 companies include in their own Web sites meta tags containing the names or descriptions of other companies. 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. (An illustration of how meta tags work can be found by clicking here. As an example of a site that uses trademarked words in its meta tags, see http://macos.about.com. When you visit that site, select "Page Source" under the "View" menu in your browser.)
Finally, we will also take a brief look at the activity of "caching."
Caching involves the storing of Web pages either in your computer's local
RAM, or at the server level. Caching Web pages on your computer's
local memory allows you to navigate back and forth through pages you've
visited in the past without having to download the pages each time you
return to them. Caching at the server level, also known as "proxy caching,"
is used by several of the more popular Internet service providers such
as AOL, Prodigy, and Compuserve. The advantages and disadvantages of both
types of caching will be explored further in this week's readings.
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Dan has created a commercial Web site dedicated to providing assistance to students with homework assignments. Called "Eazyhomework.com," the site contains little content, but rather provides users a guide to a wide array of other Web sites containing information about mathematics, science, history, etc.
Eazyhomework.com is a "frame-based" Web site, meaning that it is composed of several different "frames" whose content Dan can control with the appropriate programming. Dan has arranged the frames so that at all times, the user sees at the top of his or her browser window the Eazyhomework.com logo and a banner advertisement, from which Dan derives income. To activitate most of the links on the site, a user clicks on a word or icon located in one frame, which causes the target site to appear within another frame. When designing his site, Dan drew a diagram of this system, which you will find below (See Fig. 1).
After approximately one year of operation, Dan has been contacted by lawyers representing three different parties, each complaining of a different aspect of Eazyhomework.com's behavior.
The first complaint comes from Independence Hall Association (IHA), a non-profit organization dedicated to preserving information about the historic district of Philadelphia and educating the public about American Revolutionary history. IHA owns and operates a Web site with the domain name USHistory.org. EazyHomework.com has "framed" the USHistory.org site in the manner indicated below (See Fig. 2).
|Figure 2. This image is a picture of EazyHomework.com's site after one clicks the "History" link. To try out this functionality yourself, click here or click the image. Then, click the "History" link on the left of the screen.|
The second complaint is from Science Software, Inc. (SS). SS makes and sells a computer program called "Science Helper," which contains an encyclopedia of scientific information suitable for use by students in grade school and junior high school. Recently, some purchasers of copies of Science Helper have loaded them onto Internet servers, from which they may be easily downloaded.
A Web site known as "Software Center" catalogs various software programs available on the Internet. It provides a short description of each program and an associated link that, when activated by a user, causes the program to be downloaded to the user's computer. Nearly all of the software to which Software Center links is either freely available or "shareware," for which the author has granted a license to distribute to anyone on the Internet. In past year, however, Software Center has occasionally posted links to unauthorized software like "Science Helper" -- a practice that is beginning to earn Software Center a reputation as a "pirate site." Software Center has never been contacted by the owners of the copyrights in any unauthorized software to which it has provided links. In the past, when it has learned that a particular program within its catalogue is not freely available, Software Center has removed the link in question -- not out of fear of liability, but rather because such links typically generate troublesome amounts of traffic to its server. Included in Software Center's current catalogue is a description of Science Software and a link to one of the sites from which "bootleg" copies of the program may be downloaded.
Eazyhomework.com is implicated by this practice, because it maintains a list of "personally and painstakingly selected software sources for homework purposes" that includes Software Center's site. (See Figure 3 below for an example of how EazyHomework.com is "connected" to the software in question)
|Fig. 3. This is a diagram of what the user must do to get from EazyHomework.com to the "illegal" software, Science Helper. Click to enlarge.|
The third complaint is from On-Line Schools, Inc. (OLS). For several
years, OLS has been using the phrase "Internet Homework" to refer to its
elaborate system of assigning work to its students on the Internet.
In 1995, OLS registered the phrase as a service mark in the United States.
EazyHomework.com uses the keywords "Internet Homework" in its meta tags.
In addition, the meta tag description of EazyHomework's Web page is: "Your
place for making Internet homework easier." OLS demands that EazyHomework.com
cease using the phrase "Internet Homework" in the meta tags of its pages.
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Please Note: This module is the first of many that will require a substantial understanding of the basic concepts of intellectual property law. If you are unfamiliar with these concepts, please review the materials contained in the section entitled "Getting Started." You may also find it helpful to consult the materials on basic intellectual property doctrine found in the library.
The legal and technical issues involved in Web site publishing are intertwined. To see how they fit together, please read the following brief, general treatment of linking, framing, and meta tag use. 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."
To ground our discussion of the policy issues raised by these practices, it will be helpful to have in view a real-life example. The next article provides such a case. As you read it, ask yourself whether the behavior of the Web site in question is socially valuable or pernicious, fair or unfair. Carl S. Kaplan, "Is Linking Always Legal? The Experts Aren't Sure."
One of the first major cases in the law of linking arose in Scotland. At issue was the use by one news Web site use of another news Web site's headlines as links 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 case (above), 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.
Very 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 or other illegal activity. (Contrast the Shetland News case, above, where the defendant also used the plaintiff's unique news-story titles). The first of our cases takes place in Holland: Scientologists' copyright suit shapes Net liability, Dan Goodin, CNET News.com (June 9, 1999 (You may read the optional entire opinion by clicking here). The second case arose in Utah: Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Summary (Dec. 6, 1999)
Defendants exposed to liability under either of the theories summarized above are likely to try to escape by invoking the "fair-use" doctrine in American copyright law. An important but notoriously vague affirmative defense, the fair-use doctrine excuses conduct that, though it violates the prohibitions contained in section 106 of the Copyright Act, nevertheless should be deemed "fair." The doctrine is explored in further detail in Kelly v. Arriba Soft Corp., Summary (Dec. 15, 1999).
One of the first major framing disputes involved Total News, a Web site that links to several major news sites. Although the case brought against Total News was settled and 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." (For optional reading, you might wish to consult the entire article.)
A recent 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.
Most framing cases are straight forward. One Web site frames another. Oddly, this common scenario has resulted in no court rulings on the basic question of whether framing is or is not unlawful. Precisely why all of these disputes have thus far resulted in either abandoned complaints or settlements remains something of a mystery.
A good sense of the variety of circumstances that may give rise to a
claim of improper meta tag use can be obtained from the following three
David J. Loundy, "HiddenCode Sparks High-Profile Lawsuit."
Playboy Enterprises v. Welles
Niton Corporation v. Radiation Monitoring Devices, Summary (Nov. 18, 1998).
describes the activity of caching and its effects on the Internet, both
positive and negative. As you read, think about the relevance of caching
to the other readings in this module. Is this more a technical issue or
a legal problem?
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If you are a member of group A, you should submit your assignment answer at the time and in the manner specified on the home page for your section. CLE | Section A1 | Section A2 | Section A3 | Section A4 | Section A5 | Section A6 | Section A7 | Section A8
If you are a member of group B, you are not required to submit an
answer to the assignment but should feel free to discuss the issue in the
This week's assignment draws on the hypothetical case study. You are charged with the task of writing an informal version of the complaint for ONE of the companies mentioned in the case study. Draft two or three paragraphs explaining why EazyHomework.com should be obliged to cease (or should be liable for) the activity in question. In crafting your answer, you may draw upon the pertinent legal theories discussed in the required readings, above, but you should also feel free to deploy policy arguments against the activity at issue. (Even if you believe that none of the complaints asserted against EazyHomework.com is meritorious, do your best to explain why the suit you select should succeed.)
Each member of group A will receive a copy of one response to the preceding
assignment. Draft a brief reply, arguing why the behavior of EazyHomework.com
should not result in liability.
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1. Recall the Utah Lighthouse Ministry and Church of Scientology cases. These two cases involved similar facts, but arose in two different countries. Interestingly, the results of the cases were very similar. Do you see any differences in the reasoning used by the two courts to reach their conclusions? Assuming both rulings withstand appeal, which do you think affords more protection to someone who links to unauthorized copyrighted material?
2. If you were to create a copyright and trademark law for the Internet today, how would you deal with the issues addressed by this module? Would your law prohibit linking, downloading, or just downloading for resale? Would you include a provision allowing copying for educational uses only? Would you prohibit deep linking where the identity of the target site or author is difficult or impossible to discern? What other provisions do you feel should be included?
3. If you were charged with the unenviable task of defending the practice of framing, how would you argue? Do you think there is anything to the idea that once you post information on the web, it is quasi-public by virtue of the nature of the Web and its emphasis on the free flow of information?
4. Are the courts or Congress better suited to deal with the issues of linking and framing? What makes one institution superior to the other in the context of cyberlaw?
5. Does the fact that the Internet is global in nature affect the way the United States should address the issues of linking, framing, and meta tag misuse? If so, in what ways can and should American courts take into account the concerns of the international community?
6. In the Utah Lighthouse Ministry case, the court held that when a computer makes a copy of something in its RAM, "in the absence of ownership of the copyright or express permission by license, such an act constitutes copyright infringement." Does this apect of the ruling go too far? If so, how could the case have been decided to avoid this result?
7. Do you agree with the imposition of contributory liability on those who have links on their Web sites? If so, how many "degrees removed" from the original infringement does someone have to be before he or she is safe from liability? That is, would you hold liable a Web site that links to the ULM's web site? A site that links to a site that links to the ULM's web site? If not, then how would you respond to a copyright holder's claim that copyright protection will be ineffectual if all one has to do to escape liability is put infringing materials on someone else's Web server and then link to it?
8. 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 feel Web site owners wishing not to be framed should be required to employ such technical solutions before they can seek legal redress? Imagine that the solution were 100% effective and very easily implemented. Would that change your answer?
9. If you were charged with the task of developing a universal caching standard, what form would it take?
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 our trademark section in the library.
Mark Sableman, Link Law: The Emerging Law of Internet Hyperlinks. The most recent and 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. Same as above, but focusing on trademark law and the Web.
Tim Jackson, "The Case of the Invisible Ink.": This article discusses the idea that trademark infringement claims such as the one in the Oppedahl and Larson case are attenuated. It suggests that surfers will not be mislead or confused in the sense that trademark cases are generally thought of. The article concludes by downplaying the role that meta tags will have in the long run, given the fast-paced development of 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.
Duncan Campbell, "Computing and the Net: Shetland showdown Duncan Campbell on a good day in court for the Web." Editorial highlighting the fact that the Shetland News, if not settled, would have had a significant impact on the entire Internet community. Also criticizes Shetland News for bringing suit.
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, "TermsYou Need to Know: Search Engines.": Description of how search engines work; terms used; and distinctions among search engines, search directories, and search managers.
Meeka Jun, "MetaTags: The Case of the Invisible Infringer.": Short article discussing the Playboy Enterprises Inc. v. Calvin Designer Label case.
Caching on the Internet: Comprehensive discussion of the activity of caching. Describes types of caching, drawbacks and benefits, and the role of copyright law.
Asked Questions about Caching: Question and answer format discusses
the technical side of caching including privacy and security issues.
The Perkins Coie Internet Case Digest: excellent and diligently updated database of Internet case law.
The Link Controversy Page: A very conprehensive 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
Unauthorized Linking Prohibited in Framing Suit Settlement: Short article discussing the settlement in the TotalNews case. Also provides links to related stories and court filings. Links to a discussion of the Ticketmaster case.
Judge Enjoins Web Site's Use of Infringing Meta-Tag: Article discussing the Playboy Enterprises, Inc. v. Calvin Designer Label case. Contains links to the complaint and order issued in the case.
Linking and Liability: Nice overview of the linking controvery. 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.
Linking Called into Question: Brief discussion of Ticketmaster case.
Provides links to the complaint, Microsoft's Answer, and Ticketmaster's
Reply. Also has links to related articles.
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.Linking Cases:
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 SettlementMeta tag Cases
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, Cause 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. View an article about the case, or the opinion (translated to English).
Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., Case No. 2:99-CV-808C (C.D. Utah, Dec. 6, 1999). Enjoined defendant from providing links on its site to copyrighted materials of plaintiff. Plaintiff was found likely to succeed on the merits of its claim of contributory infringement where defendant posted messages suggesting users access the copyrighted materials via their links. See readings for a summary or the complete opinion of this case.
Insituform Technologies Inc. v. Natíl Envirotech GroupL.L.C. [Civil Action 97-2064 (E.D. La.); settled Aug. 27, 1997]: No opinion issued. You can see a discussion by the firm that represented Insituform Technologies.
Oppedahl & Larson v. Advanced Concepts [CivilAction 97-3-1592 (D. Colo.) filed July 23, 1997]. You can see the Complaint and the permanent injunctions entered with respect to the various defendants, namely Welch and Advanced Concepts, MSI Marketing, Inc., Professional Website Development, Internet Business Services, and Williams.
PlayboyEnterprises Inc. v. Calvin Designer Label [DC Ncalif, 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.
Niton Corp. v. Radiation Monitoring Devices, Inc, 27 F. Supp. 2d 102 (D. Mass. 11/18/98): Court granted preliminary injunction against defendent, barring it from using anything in its meta tags that would mislead visitors in a number of different ways. See the readings for a summary or the complete opinion of this case.
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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