One of the central features of the Web is the ability for each Web page to offer connections to other Web pages in the click of a button. There are a few ways that websites connect with one another, each with different legal implications for getting permission. This section discusses the issues raised when your site connects to other websites, and it provides a sample linking agreement.
Two common ways websites connect to other sites are linking and framing.
Most often, a website will connect to another in the form of a link (also known as a “hypertext” link), a specially coded word or image that when clicked upon, will take a Web user to another Web page. A link can take the user to another page within the same site (an “internal link”), or to another site altogether (an “external link”).
You do not need permission for a regular word link to another website’s home page. If there is some concern over the link, most issues can be squared away by having the linked site sign a linking agreement that gives permission for your link.
Many copyright experts believe that deep linking (links that bypass a website’s home page) is not copyright infringement — after all, the author of a novel can’t prevent readers from reading the end first if they so desire, so why should a website owner have the right to determine in what order a user can access a website? Some well-known websites such as Amazon.com welcome deep links. However, if a commercial website has no linking policy or says that deep links are not allowed, it’s wise to ask for permission before deep linking. Why? Because many websites — even the listener-friendly National Public Radio — have asserted rights against deep linkers under both copyright and trademark law principles.
International law is equally murky. For example, in 2002, a Danish court prevented a website from deep linking to a newspaper site. But in 2003, Germany weighed in on the issue when its federal court ruled that deep linking was not a violation of German copyright law. Subsequently, an Indian and a Danish court both separately ruled against the practice of deep linking in 2006.
Besides using external links, another way to connect from your website to other websites is by “framing.” Framing is a lot like linking in that you code a word or image so that it will connect to another Web page when the user clicks on it. What makes framing different is that instead of taking the user to the linked website, the information from that website is imported into the original page and displayed in a special “frame.” Technically, when you’re viewing framed information your computer is connected to the site doing the framing — not the site whose page appears in the frame.
Framing is generally unpopular with websites whose content is framed on another site (unless they have agreed to it). Websites that frame the content of other sites are often seen as stealing the other site’s content. One court found framing to be a copyright infringement because the process resulted in an unauthorized modification of the linked site. (Futuredontics Inc. v. Applied Anagramic Inc., 45 U.S.P.Q. 2d 2005 (C.D. Cal. 1998).) In another case, The Washington Post, CNN, and several other news companies sued a website, TotalNews, which framed their news content. Under the terms of a settlement agreement, TotalNews agreed to stop framing and agreed to use text-only links.
While case law hasn’t developed definitive rules on the issue, a framer is more likely to be found liable for copyright (or trademark) infringement if copyrighted material is modified without authorization or if customers are confused about the association between the two sites or the source of a product or service. For more information on trademark infringement, see Chapter 10, “Getting Permission to Use Trademarks.”
The court of appeals in the Kelly case did, however, uphold the lower court’s ruling that the search engine’s practice of creating small reproductions (“thumbnails”) of the images and placing them on its own website was permitted as a fair use. The thumbnails were much smaller and of much poorer quality than the original photos and served to index the images, thereby helping the public access them.
A similar result was reached by the Ninth Circuit in a case involving Google. The Court of Appeals determined that Google’s use of thumbnails was permitted as a fair use in a case involving reproductions of images from an adult men’s magazine website. (Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).)
Keep in mind that some forms of framing are perfectly legal. For instance, many sites use frames as a way of organizing their own content. When framing the content of another site, however, you are entering hazardous territory. Unless you know a site won’t object (and preferably have their agreement in writing), you should proceed very carefully if you want to frame its content.
The purpose of a linking agreement, like all permission agreements, is to avoid a dispute. If a webmaster is confident that a link will not create a dispute, then a linking agreement is probably not necessary.
However, the following types of links may create disputes:
- image links, particularly where the image is a trademark from the linked site
- deep links that bypass the site’s home page
- links that result in framing, and
- inlining links that only pull certain elements from a site, such as an image.
The permission may be informal, such as a written statement from the distant site stating, “You have permission to link to our website’s home page using the words [insert the words in the link].” Or, you can use a longer agreement that covers the terms more specifically.
The agreement provided below can be used to avoid disputes over any of these types of links.
A digital version of this agreement is included on the forms CD.
Explanation for Linking Agreement
- In the introductory section, insert the name of the company or person that owns the source site. The source site is the site where the link is located — that is, the starting point for the link. Once the link is clicked the user is taken to the destination site. Insert the URL (Web address — for example, http:// or www.address.com) for each site.
- In the section entitled The Link, describe the pages that are linked. For example:
“A link between Source Site’s ‘Other References’ page and Destination Site’s internal page entitled ‘Copyright Developments.’”
“A link between Source Site’s home page and Destination Site’s image entitled ‘Two Chihuahuas’ encapsulated as 2Chihua.JPG.”
“A link between Source Site’s home page and Destination Site’s internal page entitled ‘Today’s News,’ resulting in a framed page with the frame incorporating Source site’s trademarks and advertisements.”
Sometimes, the best way to describe a frame or inlined link is to provide a screensnapshot and attach it to the agreement. In that case, write in: “As attached and incorporated into this agreement” and attach the image to the agreement.
- In the next section, choose a hypertext link or image link (or both if necessary). A hypertext link is a word link (usually viewed as color highlighted text). An image link should be described. If it is a trademark of the destination site, ask the destination site to supply the image (usually in a GIF or JPG format).
- The Grant section permits the use of the link and related trademarks or images. The statement, “Any goodwill associated with Source Site’s trademarks automatically vests in Destination Site” is a requirement of trademark law. It guarantees that the destination site preserves its trademark rights.
- The optional section Standards and Notification is a further assurance sometimes required by a destination site that the source site won’t operate in an unlawful manner or change the link dramatically. It offers the option of instant termination. Even if this section is not included, the destination site can probably force the removal of the link if it desires.
- Both parties should sign the agreement. For information regarding signing authority, see Chapter 11, “Art and Merchandise Licenses.” Many of the miscellaneous provisions included in legal agreements, such as dispute resolution, are not included here for brevity and ease. Include any that you wish to apply to your agreement.
To minimize liability for any activities that occur when a visitor is taken to a linked website, a webmaster may want to include a disclaimer on the home page. A disclaimer is a statement denying an endorsement or waiving liability for a potentially unauthorized activity. A sample disclaimer appears below.
By providing links to other sites, [name of site] does not guarantee, approve, or endorse the information or products available on these sites.
A disclaimer is not a cure-all for infringement, but if a disclaimer is prominently displayed and clearly written a court may take it into consideration as a factor limiting damages (see Chapter 12, “Releases”). For example, in a case involving a dispute between websites for two restaurants, both named Blue Note, one factor that helped the lesser-known restaurant avoid liability was a prominently displayed disclaimer stating that it was not affiliated with the more famous restaurant. (Benusan Restaurant v. King, 937 F. Supp. 295 (S.D. N.Y. 1996).)