Connecting to Other Websites

One of the central features of the Internet is the ability for each website to offer connections to other sites in the click of a button. There are a few ways that websites connect, 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.

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Linking and Framing

Two common ways websites connect to other sites are linking and framing.

Linking

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 user to another Web page. A link can take the user to another page within the same site (an “internal link”), or another site altogether (an “external link”). You do not need permission for a regular word link to another website’s home page.

Deep Linking. Despite some inconsistencies in early case law, it is generally agreed that deep-linking (a link that bypasses a website’s home page) is not copyright infringement—after all, the author of a novel can’t prevent readers from skipping to 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? Although many websites—even the listener-friendly National Public Radio—have asserted rights against deep-linkers under both copyright and trademark law principles, the cases of Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) and Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), seem to have put the nail in the coffin for deep-linking disputes. Foreign courts general conform to this view, though there have been some anomalies.

Developer or Site Owner: Who’s Responsible for Photo Permissions?

In a 2019 case, a photographer sued the owner of a website who had displayed three of his copyrighted photos without authorization. The website owner had directed his website developer to make his site resemble a Wells Fargo website that had permission to use the photos. The site owner claimed that he believed the developer would take care of obtaining copyright permissions. Absent any proof of the developer’s obligation, the site owner was found liable for $450,000 in damage for contributory copyright infringement, which is when a defendant “(1) has knowledge of another’s infringement; and (2) either (a) materially contributes to; or (b) induces that infringement.” Erickson Productions, Inc. v. Kast, No. 15-16801 (9th Cir. 2019).

Framing

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 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.

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.

Caution

A note about “inlining” content. “Inlining” (sometimes referred to as “embedding”) is the process of incorporating a graphics file from one website onto another website. In the first case involving inlining (Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003)), an image search engine called ditto.com used inline links to reproduce full-size photographic images from a photographer’s website. By clicking on the link, the user got a window containing a full-sized image imported from
the photographer’s website, surrounded by the search engine’s advertising.
The court of appeals in the Kelly case ruled 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).)

Dear Rich : I Framed a Website; Now PicRights Wants Money!

Dear Rich: I build websites, and one of my clients is a small auto shop. The auto shop’s website includes a listing of brands that they carry and includes links. Some of the links steer the user to the brand website. Some of the links allowed the user to stay at the auto shop website and to view the brand website within a frame. Several months ago, the auto shop got threatening letters and emails from PicRights.com, a photo rights company, saying that two of the framed brand sites each had a photo that was “copied” from one of their stock photo clients. Naturally, the auto shop nor I had any knowledge or control over what one of these brand companies or their web people used on those sites. I removed the links to those companies, and we told PicRights that via email. But the auto shop continues to get threatening letters including one from an attorney.

We can’t predict how the auto shop would fare if this matter proceeded to court (and we assume the auto shop doesn’t want to litigate), but if we were a betting blog, we’d wager that the auto shop’s liability would not exceed $1500. It’s even possible that the shop would owe nothing. Here’s why:
Framing and copyright. What makes framing different from typical linking is that instead of taking the user to the linked website, the information from that website is displayed in a special “frame.” 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. But in reality, the image isn’t duplicated because the link is just HTML code pointing to the image or other material. (A similar result occurs when a single photo from one site is embedded in another site — a process called “inlining.”)
Conflicting case law. Framing and inlining are often used to deliver search engine results. Courts have held in two cases where search engines linked to thumbnail images, that such uses are permitted as fair use. In one of those cases, Perfect Ten, the Ninth Circuit Court of Appeals devised the “server test” in which the court ruled that if the allegedly infringing work is on your server, you infringed. Under the server test, the auto shop might prevail, assuming no copies of the infringing photos were stored on the auto shop servers. Complicating the analysis, a New York judge in 2018 rejected the server test in a case about an embedded Twitter photo. In other words, your case might achieve a different result in California than in New York. (Hopefully, an appellate court or the Supreme Court will resolve the difference between circuits.)
What should the auto shop do? You were wise to remove the framed links immediately as that demonstrates your good faith responding to the claim as well as limiting your potential damages. It’s also reasonable for the auto shop to request proof that the images have been registered in the Copyright Office. If they haven’t been registered before your posting, PicRights or the stock photo company could not claim statutory damages or attorney fees. Also, they can’t sue you in federal court without the registration. (Although not conclusive, we found no copyright registrations under either complaining party’s name in the Copyright Office database.) If they have registered the copyright before your posting, the minimum for damages would be $750 per photo (or $200 per photo if you were determined to be an “`innocent infringer”). Feel free to write to the photo rights company and share our information but don’t expect a reasoned response. (If we analogize to fishing, the company’s policy is to use drift nets, not catch-and-release.)
Will you get sued? Oddly, when we searched PACER, we couldn’t find any records of copyright lawsuits filed either by PicRights or by the stock photo company claiming to own rights. Perhaps the companies sue under other names, but it’s possible that they never file lawsuits, only threaten them. To be prudent, the auto shop should obtain an opinion from an attorney before blowing off the letter.
P.S. Dept. It’s possible that you may be threatened with contributory infringement. We believe that under Ninth Circuit standards, you would prevail.

Keep in mind that some forms of framing are perfectly legal. For instance, many sites use frames as a way of organizing their content. When framing the content of another site, however, you are entering hazardous territory. Unless you know a site won’t object or have reached an agreement with the site’s owner, you should proceed carefully before framing its content.

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Linking Agreements

The purpose of a linking agreement, like all permission agreements, is to avoid a dispute. As the web matures, there is less and less need for these agreements.

However, the following types of links may create disputes:

image links, particularly where the image that you click on is a trademark from the linked site
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.

FORM

Linking Agreement
This Agreement (the “Agreement”) is made between ____________________ (“Source Site”) with its homepage URL of ___________________ and _________________ (“Destination Site”) with its homepage URL of _____________________________.
The parties agree as follows: The Link

The Source Site will provide a link to the Destination Site as follows: _____________ ________________________________________(the “Link”)

The Link includes Destination Site’s URL and:
(select if appropriate)

___ Hypertext link–the words: ____________________________.

___ Image link: ________________________________________.

___ Framed link: ________________________________________.

Grant

Destination Site grants the right to display the Link at the Source Site and the nonexclusive right to display publicly the trademarks or images in the Link. Source Site obtains no trademark rights under this Agreement other than the right to display the marks. Any goodwill associated with the Source Site’s trademarks automatically vests in the Destination Site.

Standards and Notifications

(select if appropriate)

___ Source Site shall maintain its site in accordance with industry standards and upon notice from Destination Site shall promptly remove the Link if required. Source Site shall promptly notify Destination Site of any change to the Link or changes to the Source Site affecting the Link.

By:

Date:

Source Site Title:

Source Site Mailing Address:

email:

By:

Date:

Destination Site Title:

Destination Site Mailing Address:

email:

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.”

Or,

“A link between Source Site’s home page and Destination Site’s image entitled “Two Chihuahuas” encapsulated as 2Chihua.JPG.”

Or,

“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 screen snapshot 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. (Click here for an example and explanation of an “Art and Merchandise License.”) 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.

Linking Disclaimers

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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 potentially unauthorized activity. A sample disclaimer appears below.

Linking Disclaimer

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 written a court may take it into consideration as a factor limiting damages. 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).)

Dear Rich : Can I Post Screenshots at My Website?

Dear Rich: Dear Rich: I have a question. I’ll be using a lot of screenshots from different websites in my book. Do I need to get permission for that or is it fair use?

Conventional wisdom (and the Electronic Frontier Foundation) says that an unauthorized screenshot is an infringement. That said, the use of screenshots rarely triggers a complaint because either: (1) the copyright owners don’t want to complain about something that promotes their company—for example, an online tutorial about using Microsoft Word, or a book about starting an eBay business, or (2) the copyright owners believe the use is likely to be excused as a fair use. Although issues don’t often arise, occasionally copyright owners do complain—for example, Apple complained about prerelease screenshots of the iPhone. Some sites place limits on your use of screenshots in their user agreements.

Keep in mind that if the copyright owners do complain, the results can be unfortunate—it may disrupt publication of a book or other product. Perhaps a more important issue to consider is whether what you are doing is likely to anger or annoy the copyright owner. If it is, proceed with caution and review your use of the company’s trademarks so that your use doesn’t imply an association or endorsement.