Authors:	Katia Bodard MA (UG-KUL-VUB), LLM (VUB), Lic R (VUB) Institute for European Studies, Vrije Universiteit Brussel
	Bruno de Vuyst Lic R (UIA), LLM (Columbia) Associate Professor, Vesalius College, Vrije Universiteit Brussel
	Gunther Meyer Lic R (KULeuven), DES (ULB), MIPR Adjunct Assistant Professor in Business Law, Vesalius College, Vrije Universiteit Brussel
Subjects:	Copyright -- Computer network resources (Other articles) Copyright Infringement (Other articles) Internet computer network law and legislation (Other articles)
Issue:	Volume 11, Number 1 (March 2004)
Category:	Current Developments

Contents

• Introduction
• Deep linking, Framing and Inlining
• Owning the Linking Technology
• Intellectual Property Rights and Legal Issues
• Linking and deep linking
• Inlining
• Framing
• Click-on agreements
• Cross-link agreements
• Conclusions from the Case Law Review
• Notes

Acknowledgement: Thanks to Liv Steuts, Lawfort, Brussels for research inputs.

Introduction

1. Hyperlinking has been a paramount tool in the development of the Internet. Hyperlinking techniques allow retrieval of information in a quick and easy way. They may refer directly to desired information, or this information may be physically located on another site than the linking local site. Use of this latter technique may mean that IP material is not copied or used directly by the person or entity creating the hyperlinks.

2. A case law review of mainly common law decisions but including some emerging civil law cases reveals, in the context of the debate on IP and free access to information, first, whether hyperlinking remains in the public domain and second, how much hyperlinking and in what technical form may be allowed by IP owners without authorization or licensing. Click-on agreements, wrap-around licenses and cross-link agreements are briefly discussed in the context of the creation of 'super copyrights' related to hyperlinking.

   Deep linking, Framing and Inlining

3. Hypertext links have been one of the primary forces driving the world wide web [1] By connecting the different webpages, it allows Internet users to access information quickly and easily [2]

4. There are at least three kinds of links - references - possible through HTML. The simplest is the Hypertext Reference HREF link or hyperlink or surface linking which allows a viewer to jump from one page to another: clicking on the link instructs the browser software to go to the linked location, usually another website i.e. remote link specified or formatted in the HTML code of the linking website [3]

5. "Deep linking" is a special kind of hyperlink: it defeats the remote website's intended method of navigation, taking one to a page deeper than the home page [4] A deep link leads the user to an interior page of a website, rather than to the home page thereof.

6. "Framing" permits the operator of website A to allow its visitors to link to website B from within website A, by displaying website B in a window "framed" by the content from website A e.g., website A's logo or advertising. Consequently, framing allows a website operator to divide a browser window into multiple, independently scrollable frames, and to place separate documents from different sources into each window [5] The user looks at a site as if through a window, looking in from the original site and staying there rather than going in.

7. "Inlining" IMG or Image Linking brings graphics on screen as part of a web document - not in a separate frame - while they may originate outside of the document's HTML code. That origin may be elsewhere on the website publisher's server or on a different website [6] Thus, when an Internet user views a website with an inlined image, they see an image from another site and this other site actually serves it.

   Owning the Linking Technology

8. Although hyperlinking is seen as fundamental to the functioning of the World Wide Web, several patents are used to assert ownership over hyperlink technology or parts and applications thereof:
   • U.S. Patent 4,873,662 BT;
   • U.S. Patent 6,195,707 IBM's "Bookmark Alias"
   • U.S. Patent 6,154,752 Lockheed Martin's "Colored Hyperlink"
   • U.S. Patent 5,924,104 IBM's "Intradocument Link Display"
   • U.S. Patents 5,778,181,5774,664 and 6,018,768 ACTV.
   • U.S. Patent 5,794,207 Priceline.com's "name your price" auction
   • U.S. Patent 4,558,302 Unisys "Gif"
   • U.S. Patent 5,960,411 Amazon "I click"
   • U.S. Patent 6,157,946 NetZero on pop-up ads on Free Internet services
   • U.S. Patent 6,073,241 CNET Inc.'s "Apparatus and method for tracking world wide web browser" on the operation of banner advertisements
   • U.S. Patent 5,855,008 Cybergold's "Attention Brokerage"
   • U.S. patent 5,105,184 the "Energizer Bunny Patent" on methods for displaying and integrating commercial advertisements with computer software.

9. In addition, AltaVista claims to own 38 patents in the search area, and 30 in applications, pursuant to which David Wetherell, representing investors in AltaVista could claim that "we believe that virtually everyone out there who indexes the Web is in violation of at least several of those key patents".

10. Some of these patent holders filed suit against users of "their" hyperlinking technology. For example, BT and ACTV filed suit against Prodigy an ISP and Disney, respectively, asserting patent infringement because of the use of "their" hyperlinking technology. BT's claim against Prodigywas broadly based. ACTV's assertions were narrower, based on technology for incorporating web links into interactive TV programming for such programs as Sunday Night and Monday Night Football or Who Wants To Be a Millionaire. On August 22, 2002, the U.S. District Court for the Southern District of New York issued a summary judgment in favour of Prodigy. The decision let the patent stand but found no infringement of said patent. The same court had earlier that year on May 24 also granted a summary judgment in favor of The Walt Disney Co., which ACTV Inc. had sued for patent infringement. The validity or enforceability of the 3 patents asserted by ACTV was however not addressed in this case. ACTV decided therefore to appeal that decision for the US Court of Appeals for the Federal Circuit.[7]

11. If this or other patent claims are found valid, they may lead to severe adjustments in the use of an essential tool of the Internet. The monopolies these patents would create, would go squarely against the ideas of the inventors of the World Wide Web[8] namely that a web publisher should have the freedom to link as a natural law proposition of the computer age [9]

    Intellectual Property Rights and Legal Issues

    Linking and deep linking

12. Free linking has been fought over since linking case law began in Scotland, in 1996, with the Shetland Times case [10] In that case, which was ultimately settled allowing linkage as if under a linking license, the Scottish court issued an interim interdict - a preliminary injunction - asserting infringement of copyright while referring to the prospect of loss of advertising because of the bypassing of the Shetland Times front page [11]

13. Cases in which plaintiffs relied on intellectual property rights to stop deep linking appear, at least in the U.S., not to have prevailed. In Ticketmaster Corp. v. Microsoft Corp, Ticketmaster alleged trademark dilution and other unfair competition because Microsoft's "Seattle Sidewalk" allowed visitors to deep link into the Ticketmaster site. The case was settled, among others by Microsoft removing the deep link [12] But in Ticketmaster Corp. v. Tickets.com Inc., the court held that hyperlinking itself does not involve a violation of the Copyright Act stating that "when a hyperlink is clicked, the user is automatically transferred to the web page of the original author, analogous to using a library card index to reference to an item". The court left, significantly, the question open whether a contract - and the breach thereof - could prohibit hyperlinking [13] In a follow-up motion, while declining with Ticketmaster's request for a preliminary injunction, the court again saw no copyright issues. However, the court indicated that Ticketmaster's claim based on the common law trespass to chattel might have some merit, but warranted no preliminary injunction [14] It may be noted that in contrast to the abovementioned cases the plaintiff in the eBay case, of which more below, did not base its complaint on intellectual property law.

14. In Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., the judge ruled that the ministry contributed to a copyright infringement by posting a portion of Intellectual Reserve's copyrighted Church Handbook of Instructions as well as by providing its visitors information about and links to other sites posting this Handbook. These other sites also contained infringing materials, a fact that the ministry knew or should have known [15] in such case, hyperlinking constituted a copyright violation.

15. In Universal City Studios, Inc. V. Shawn C. Reimerdes, known as the DeCSS case, computer hackers developed a computer program called DeCSS that circumvented a DVD's encryption protection and allowed movies to be copied. DeCSS was posted on a website, and the defendants were promptly enjoined from doing so under the terms of the Digital Millennium Copyright Act [16] which proscribes anticircumvention of technological measures so as to protect copyright. Significantly, the court did not at first prohibit linking to other websites where DeCSS could be obtained [17] thus contrasting its stance with that of the court in Utah Lighthouse, but later recanted and enjoined the linking activity [18]

16. In Japan, an Osaka District judge took an even more stringent position. The judgement stipulates the principle of law that once a person creates a web site with a link to another site, which violates the law, then the person creating the link can be charged with aiding and abetting the crime committed. This was regardless of whether or not the person creating the link was aware of the illegality of the web site linked to. The decision reiterated the proposition that ignorance of the law is no excuse [19]

    Inlining

17. In Kelly v. Arriba the court held that the display of copyrighted images by a search engine constitutes fair use under the Copyright Act; the court also held that displaying such images without their copyright management information did not constitute a violation of the Digital Millennium Copyright Act [20] Arriba Soft Corp. operates a search engine, which displays its results as small pictures - "thumbnails" - rather than as text. By clicking on a "thumbnail", the larger version of the picture within the context of the Arriba web site, as Arriba copies images from other web sites - inlines them. This also happened with the copyrighted material of Leslie Kelly, a photographer. The court held that while the use of "thumbnails" was fair, inlining was not [21]

18. Inlining, already outlawed in Arriba, appears to have taken a further blow in the Dilbert case. In this case a fan of the Dilbert comic strip did not like the design of the official Dilbert site and therefore created its own site using IMG links to display the cartoon images from the official Dilbert site. The Dilbert fan's use of inlined links to the comic strip led to a cease-and-desist demand and prompted the fan to remove his page [22]

    Framing

19. Framing has also given rise to several claims [23] In a settled case, Washington Post G. v. Total News, Inc. [24] the Washington Post did not complain about hyperlinking, but about framing, as the viewer would see the Washington Post site within a Total News frame, and without the Washington Post banner advertisements. This complaint is similar to an English one, in which a U.K. publisher, Haymarket, sued Burmah Castrol plc for framing two websites within a Castrol-branded border [25]

20. In Futuredontics v. Applied Anagramics, Inc., the argument centered on whether framing created a derivative work [26] While the court indicated that no sufficient evidence had been brought to demonstrate that framing did create a derivative work, it appeared to be willing to go in that direction. At least one leading author doubts the validity of this way on the basis of a review of Ninth Circuit decisions, however [27]

21. It leaves the eBay case [28] in which the defendant, aptly named Bidder's Edge, was accused of using a robot - a spider - to extract information about eBay's auction listings, placing the information in its own database so that its viewers could search eBay's listings more effectively. Significantly, eBay did not base its complaint on intellectual property law, but on an ancient common law wrong known as trespass to chattels, an unauthorised interference with another's personal property that causes harms. This is the same remedy as was hinted at in Ticketmaster see above. On appeal, an amicus curiae brief by 28 leading law professors argues that if the decision - a preliminary injunction - were to stand, it would allow web sites to fence off non-copyrighted materials such as eBay's listings, retarding the growth of e-commerce and preventing online transactions. The authors only acknowledge that if significant harm is done to operations or server capacity, or to a customer base - e.g. in cases of spamming - the trespass theory might work, but they indicate that as eBay's servers were devoting 1.3 per cent of their capacity to Bidder's Edge traffic, this was not enough to trigger the remedy; eBay obviously argues the reverse. Interestingly, in another amicus brief, R.A. Epstein of the University of Chicago written on behalf of Reed-Elsevier plc, the National Association of Realtors and several e-commerce companies, all of whom publish information online and are lobbying the U.S. Congress for increased protection of online databases argued that a web site is real property and not a chattel - i.e. personnel property - and that any electronic intruder may be kicked off without the need to show harm [29] Accepting this theory would induce web site owners to bargain over access rights. Claims concerning hyperlinking are increasing, thick and fast, including e.g. in Denmark [30]

22. From the above it is clear, at least for linking and framing, that problems are created that could not be resolved in a clear and unequivocal manner by common law courts. Furthermore, and in light of the worldwide use of the Internet, it is important to caution that all arguments accepted by common law judges will not be as such taken into account by judges in other legal systems, such as in continental Europe's civil law system. For example, contrary to what the judge in the Futuredontics v. Applied Anagramics, Inc. case appeared to accept, it is in The Netherlands difficult to qualify a hyperlink as a derivative work. According to Dutch law a derivative work is seen as a multiplication, hence in The Netherlands it is generally accepted that the person creating a hyperlink does not multiply the page, to which the link leads. Consequently, a hyperlink cannot be qualified as a derivative work. On framing, however, the judge in the Dutch Vriend v. Batavus case was of the opinion that framing - i.e. a link as a result of which the linked web site the "framed web site" is displayed in the frame of the web site stating the link the "linking website" - is unlawful as a copyright infringement because it creates the impression that the framed information belongs to the linking website [31] The decision is confusing in its argument: copyright law considers objective, not subjective elements of a violation, hence, there is no place for "impressions". Possibly, the decision could rightly argue its outcome based on commercial practices law rather than on copyrights, as such law allows consideration of appearance at impression.

    Click-on agreements

23. Already in Ticketmaster, the court indicated that a web site owner could validly force users to agree on terms and conditions before gaining access to his site. Click-on agreements appear enforceable in the U.S. and may strike out the 'fair use' rights, which frustrates the constitutional at least in the U.S. and legal protection given to copyrights [32]

24. In continental Europe, click-on agreements may be questioned as regards their validity as they are adhesion contracts, in which one party has the power to impose its terms on the other, usually a consumer, via standard terms that are non-negotiable [33] In economic terms, one stands before an example of an imperfect contract.

    Cross-link agreements

25. Cross-link agreements are license agreements between two web parties permitting each party to hyperlink to the other's web site. Some authors are of the opinion that in light of the increasing number of web sites being added to the Internet and the number of unpoliced hyperlinks, it is timely for cross-link license agreements to be implemented on a larger scale. Such cross-link agreements are particularly recommended in case of hyperlinking, framing and in the event that the hyperlink has a site that incorporates trademarks from the other party.

26. As the cross-link agreements may establish rights and obligations of the contracting parties, but do not have effect towards third parties, the need for disclaimers is not hereby eliminated [34]

    Conclusions from the Case Law Review

27. If the technology is owned by one or a limited number of parties, hyperlinking and its consequences, in terms of information gathering and e-commerce, may be severally hampered. The same is true if web site servers, or web sites, are deemed chattel or real estate.

28. Hyperlinking, including deep linking, appears to cause few problems under copyright law unless in instances of e.g. knowingly linking with already infringing material.

29. There will be some uncertainty with framing until the discussion over whether it leads to the creation of, or constitutes a derivative work is conclusively settled. There is some doubt, however, that this should be concluded. If framing leads to the impression that the framed information belongs to the linking website, this might be unlawful. Inlining, however, appears to be outlawed.

30. Most troublesome may be the increasing use of click-on agreements or wrap-around licenses prohibiting linking. In the Total News settlement, Total News was required to obtain licenses from the Washington Post for hyperlinks that Total News had previously set up without authorisation [35]

31. Banner advertising continues to be a significant source of revenue for commercial web sites, and many advertising agreements are drafted to reflect revenue in the number of hits derived on the page, hence, the owner of the website will not be pleased about the siphoning of hits away from his page, and will want to restrain unauthorised linking or framing. The strategy may therefore be to require authorisation for linking or framing though contractual means, a strategy that is not unwelcomed by the American Bar Association [36] The issue of these click-on agreements is that they are imperfect, even leonine, creating super-copyrights that denude the notion of fair use. While such click-on agreements possibly lack validity in civil law, at least could be challenged in such legal systems as leonine or unlawful adherence contracts, they appear acceptable in common law if no legislative mitigation is provided for.[37]