Linking And Framing: Unfair Competition On The Internet?

Linking and framing - two technologies that are widespread on the Internet - have caused quite a stir in the United States court system. Using links (which are sometimes referred to as "hyperlinks") on a web site is a core function that has shaped the Internet as we know it today. From one person's web site, you are able to magically jump to another person's web site by clicking on a link on the first person's web page. In an electronic world based on the sharing of information, this practice seems natural, if not necessary. However, with the commercialization of the Internet and the paradigm shift towards revenue generation instead of information exchange, disputes regarding the uses and abuses of such links have found their way into more than one court in the United States.

So what are links and why are they causing such a stir? In technical terms, a link is a command in the programming of a web page that tells the user's browser to open the linked page of another web site. Sometimes these links occur within the same web page and other times the link occurs by opening an entirely new web site. Most people, when asked about linking, cannot understand why it would be the basis of a lawsuit. One would think that the owner of a linked page would be happy to have someone else directing traffic or visitors to their page. However, the analysis is much more complicated than that.

A web site often consists of multiple web pages. When one web site links to another web site, it is often the case that the referring web site links to a page other than the main or "home" page of the web site (this practice is sometimes referred to as "deep linking"). For example, one web site may link to an article posted on another web site which is not the first page of that web site but rather embedded somewhere within that web site. By linking to this article and not to the home page, the referring web site may be avoiding the initial pages of the linked web site that contain advertisements or where the advertisements command a higher price (because of the higher "hit rate" on that page). In addition, depending on the context of the link and how a referring web site uses them, a user of the Internet may be mislead into believing that the linked material belongs to or is otherwise sponsored by or affiliated with the referring web site rather than the site which is linked. Unauthorized linking may also form the basis of a trademark infringement claim if the link itself uses someone else's trademark or logo or is used in such a way that the link causes a likelihood of confusion as to the ownership of the mark or dilutes the distinctiveness of the trademark.

"Framing" technology poses even more difficult issues by taking linking one step further. But what is framing? In newer web browser software, it is possible to program a web site to contain multiple frames within one window. Each frame operates independently of the other. For example, a web site can be programmed to have a frame running vertically along the left side of the web page that contains the navigation for the web site, with the content appearing on the right side of the web page. As a user navigates the web site using the left frame, the contents of the right frame changes to display the appropriate information. Frames are also often used to create an advertising frame which contains all of the banner advertisements for the web site. This way, advertisements are continually displayed as the user navigates through the web site.

So why is the practice of framing triggering lawsuits? A web site can link to another web site and, rather than transporting the user to the new web site (and, thus, leaving the referring web site), the referring web site can display the linked web site in a frame within the referring web site's page. By doing this, the referring web site is able to supply content and information from a linked web site while at the same time maintaining control over the other frames (such as navigation and advertising). Those parties whose web sites are framed have argued that they are being harmed for a variety of reasons. First, the framed web site's ability to generate advertising revenue form its site may be diminished greatly, since the referring web site's advertisements can be displayed in frames surrounding the linked web site's page. Second, there is a greater likelihood of confusion or "passing off" that the content in the frame belongs to the referring web site rather than the linked web site. Third, the owner of the linked web site may argue the display of their web page in a frame creates an unauthorized "derivative work" (and, therefore, constitutes a violation of the U.S. Copyright Act) because the overall display of their web page in a browser has been changed due to the frame surrounding the linked material.

Two recent cases illustrate the potential issues associated with linking and framing. In TicketMaster v. Microsoft (C.D. Cal. 1997), Microsoft was sued by TicketMaster for linking to pages within TicketMaster's web site without TicketMaster's authority. While one would think that TicketMaster would have been more than happy to have Microsoft direct business to TicketMaster's web site, TicketMaster argued, among other things, that Microsoft did not link users to TicketMaster's main home page, but rather "deep linked" directly to content pages within TicketMaster's web site. The second case, The Washington Post Company, et al v. TotalNews, Inc., et al (S.D. N.Y. 1997), involved framing by TotalNews of the Washington Post's web site. TotalNews was in the business of supplying news content from multiple sources which were displayed within a frame on TotalNews' web site.

Both of these cases have settled and, therefore, have left us with no court opinion upon which to rely as legal precedent for future cases. However, several practical lessons can be learned from those cases:

1. Framing another party's content is a risky business and one should strongly consider negotiating a written agreement with a third party prior to framing that party's site;
2. It may be prudent to negotiate a written agreement with a third party prior to linking to a web site;
3. If one wants to link to a third party's web site, it is best to link to that web site's main home page;
4. Avoid using a third party's logo or trademark as a link;
5. Make sure that linking to another site does not create a likelihood of confusion or the impression that the linked material is owned or endorse by, or otherwise associated with, the referring web site; and
6. Be flexible. As legal precedent develops in this area, parties may need to modify their web linking and framing practices.

As the practice of linking and framing has become more widespread in Internet site architecture, the legality of these practices is likely to continue to be disputed. The utility and "user friendliness" of linking and framing will have to be weighed against the potential economic harm to the linked and framed sites, especially if the predominant method for generating income on Internet websites continues to be advertising. This is an issue that the Internet community will need to monitor very closely.

Andrew D. Sussman contributed to this article.