20 MARCH 2002

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Too much hype about hyperlinking?

In the first of a three-part series on Internet security and related copyright issues, Dr Maria Chetcuti Cauchi takes an in-depth look at the commonly-used method of hyperlinking and its legal implications

Cyber-threats to copyright
The subject of copyright law has, from time immemorial, generated controversy. An old legend tells of a sixth century Irish monk who, loving nothing more than beautiful books, arduously copied a priceless Psalter. The monk was discovered by his master and brought before the king. Without denying that the original Psalter belonged to his master, the monk fervently argued that he had toiled long and hard to create the copy, thus it should belong to him. However, the king delivered his decree: "To every cow her calf; to every book its copy." With that judgement, the monk restored the copy and one of history’s primary copyright cases was resolved.

The issue of copyright remains a contentious one, even though fourteen centuries have passed and numerous copyright-related court disputes have been decided. Nowadays, the issues are more than ever burdened with complexity and doubt, especially when one threads into the realm of cyberspace. This is a virtual world driven by a technology that centres around the ability to electronically produce, reproduce and circulate any sort of work. The work that had taken the monk weeks or months to complete, can now be carried out in nanoseconds. The king would not be pleased - his task would have been considerably more complex and in this day and age, this same task is facing courts and legislators worldwide.

The internet does represent a substantial threat to the future of copyright. How can copyright be applied to the internet when technology enables significant quantities of data to be stored, copied, manipulated and transmitted with astounding ease? Indeed, the internet has been likened to the "world’s biggest copy machine" and is available to experts and non-technical users alike. Many acutely challenge the appropriateness of traditional copyright law to solve today’s problems. The internet may not be causing the redrafting of the statute book on intellectual property, but it is definitely adding a few chapters to it. This article attempts to explore some of these new aspects.

The last decade has witnessed a major upheaval in copyright regulation. Many countries have addressed the problem of online copyright infringement in their domestic laws. This move was triggered by regional as well as international initiatives such as the EU Directives on copyright and e-commerce as well as the US Digital Millennium Copyright Act. The World Intellectual Property Organisation (WIPO) has also adopted two intellectual property treaties: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). These treaties provide responses to the challenges of new digital technologies, hence their denomination "internet treaties".

The Internet’s high-tech tools
The practice of linking and framing is omnipresent in the World Wide Web. Indeed, the WWW would not function so powerfully and efficiently without the availability of such devices. However, such practices give rise to a wide range of risks, the implications of which make up the subject-matter of this article.

Hyperlinks
The web is an interactive medium in which a user may easily "jump" from one site to another through the use of hyperlinks. It is this fundamental characteristic that makes the web so appealing to end users. A hyperlink can be defined as an element in an electronic document that connects the internet user to another location on the internet: a point within the same page or within another page in the same web site or an entirely different web site. Typically, a hyperlink takes the form of a word, a set of words or an image which,. when clicked, leads to a preset destination. It has been claimed that the inclusion of a hyperlink to someone else’s web site into one’s own site could constitute a breach of copyright. The internet relies heavily on the hyperlink networking system and should courts surrender to such claims of possible infringement, the foundations upon which the internet rests would be severely shaken and the internet would risk coming to a standstill.

Deep linking involves linking directly to a particular internal web page, bi-passing the intended homepage. An interesting US case, Ticketmaster v. Microsoft, addressed the issue of unauthorised deep-linking. Ticketmaster filed suit against Microsoft for improperly using Ticketmaster’s name and logo on their web page, Seattle Sidewalk. By making use of "deep" hyperlinks, the Seattle Sidewalk web site would take its users directly to Ticketmaster’s event listing to purchase tickets, thereby bypassing Ticketmaster’s homepage. Ticketmaster objected to this practice, claiming that this direct linking permitted Microsoft to benefit from Ticketmaster’s tradename and trademarks .

Interestingly enough, before the suit began, Microsoft’s negotiations to obtain Ticketmaster’s permission to create a link to the latter’s site had failed, but Microsoft still chose to establish the links anyway. This suggests that Microsoft was concerned and uncertain about the legal basis of their action in deep linking to Ticketmaster’s site. Also worthy of note is the fact that Ticketmaster filed an amended complaint, with particular reference to deep linking rather than mere linking. This reflects Ticketmaster’s doubts as to whether mere linking to a homepage may be actionable or otherwise. Upon refusing to grant a preliminary injunction to Ticketmaster, the Court confirmed that hyperlinking as such did not infringe copyright because no actual copying is involved. Unfortunately, that is as far as the Court’s pronouncement goes, as the parties eventually reached a settlement, depriving us of the Court’s formal pronouncement on the issue.

Generally, one-word links are not deemed to constitute copyright infringement. In a UK case, Shetland News provided hypertext links to its competitor’s (Shetland Times) news pages via ‘hot linked’ headlines, which were taken verbatim from and linked to the plaintiff’s website. Lord Hamilton granted an interim interdict to stop the Shetland News from making free links to the Shetland Times web site. These hyperlinks provided direct access to the related text published on the Shetland Times site without the user passing through the plaintiffs’ homepage. This would probably lead to a potential loss of revenue, considering the fact that the user was bypassing the adverts on the plaintiff’s home page. The Court held that inclusion of word-for-word headlines constituted prima facie copyright infringement. This opinion reflects the fact that there are increased risks of liability when the links reproduce more than just a word or phrase.

Thus, reproducing a logo or a web site title as a hyperlink which takes the user to the respective web site’s home page seems to be an approved practice as it increases web traffic and benefits all the parties involved. However, the legitimacy of deep linking is still dubious. Many of the decisions on this matter are marked by deep inconsistency and lack of clarity, varying between one state and another.

Framing
Framing allows a web site operator to divide a web page into scrollable portions, or windows. These are viewed concurrently in distinct parts of the screen, each functioning autonomously. Content such as logos, titles, table of contents, links and banner ads, which the web master feels should appear on each page of the web site, can be allocated to a header, footer or contents frame which remains on the screen while a user browses the site’s pages in the main frame. This saves the user considerable time otherwise wasted in downloading repetitive content.

Hyperlinks in one frame can trigger and display web pages in another frame, usually the main frame. Effectively, this means that it is possible for web designers to create a frame structure that takes the user to other web sites while maintaining the original surrounding frames around. Therefore it is possible for users to be viewing another web site in a frame surrounded by the logo, title and adverts contained by the referring web site. The practice creates the impression that the operator of the referring web site has also produced the second which appears within his frames. Alternatively, it purports that there is a relationship between the proper operator and the infringing site, when there is none.

The case of Washington Post Co. v. TotalNews, Inc. caught the attention of many users and web site operators. TotalNews was a web site providing a list of hyperlinks leading to news content offered by other sites. The plaintiffs claimed that the defendants had created a parasitic web site that simply republished the news and editorial content of already existing web sites rather than having its own material. The links themselves were not objectionable. The problem was that when users activated the submitted links, the material derived from the original site was displayed within a frame created by TotalNews containing TotalNews advertising, Total News logo, and URL on the screen surrounding the activated page. Several of the referenced sites objected to this usage and alleged the breach of various intellectual property rights. Many observers were anxious to get a determination from a Court on the various legal issues presented by framing,. However, Total News and the other defendants settled this controversy. TotalNews consented to stop ‘framing’ the content of those sites that objected. The decision to settle did not provide a conclusive answer to many of the doubts presented by framing. However, this settlement could still suggest that hyperlinking in a framed arrangement could be actionable.

Solutions
As the practice of framing is usually scorned upon, technological solutions such as anti-framing software have been often resorted to. However, this often creates a kind of "technological race", resulting in the creation of counter-devices such as anti-anti-framing software. Are such technological devices the only solution presented to web site owners? Legislation should provide more clarity and consistency if one wants the WWW to function at its optimum.

The problem of linking is also somewhat blurred. The act of linking to a site’s homepage seems generally to be acceptable. Indeed, the linked site would benefit from increased site traffic. However, in the case of deep linking, the linked site may argue that the link causes harm by bypassing the site’s home page, often a major source of advertising revenue. A number of strategies may be employed to try to protect a site from unauthorised linking. Strong consideration should be given to registering the copyrights on a site. Once a copyright registration is attained, the copyright holder is then entitled to sue infringers to enforce its rights. In addition, in many jurisdictions a certificate of registration shifts the burden of proof on the defendant to prove that it has not illegally copied the substance contained in the plaintiff’s site. Some companies have even resorted to patenting the design and content of their web site. Some web site owners also post terms of use on their web site, delineating the governing agreement for use of the site. Theoretically, in case of violation of such terms of use, including linking rules, the web site operator can proceed against the violator for breach of contract.

However, all these solutions still need to be backed up by more specific legislative action. The reality is that the law desperately needs a facelift as far as online copyright infringement is concerned, unless one wants the internet to become the subject of private litigation on the basis of online "Terms and Conditions" statements. In the words of the US Information Infrastructure Task Force, "when technology gets too far ahead of the law, and it becomes difficult and awkward to apply the old principles, it is time for re-evaluation and change."


Dr Maria Chetcuti Cauchi B.A.(Law), LL.D., ACIArb is currently reading for a Masters degree in International Economic Law at the University of Warwick, UK. Email: mcc@maltagate.net



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