Linking, Framing, and Inlining

Using deep links, frames, and others' graphics on your website can sometimes cause problems, either because it's illegal or because it simply displeases other website owners. Here's a discussion of what to avoid and when to get permission.

Linking

Linking is so fundamental to the Internet that many users feel that any legal restriction on their use of links is a violation of the right to travel and speak freely in cyberspace. But many businesses are far less enthusiastic about some aspects of linking. Here, we briefly discuss some of the legal principles that may limit the right to link.

Deep linking. Deep linking allows visitors to bypass information and advertisements at the home page and go directly to an internal page. There is no law or court ruling prohibiting deep linking. However, businesses dislike deep links because:

• linked-to sites can lose income since their revenues are often tied to the number of viewers who pass through their home page, and
• it may mistakenly create the impression in a user's mind that the two linked sites endorse each other.

Trademark infringement. A trademark is any name or graphic image that identifies and distinguishes products or services -- for example, a word such as "Yahoo!" or a graphic image such as the "Ask Jeeves" butler. Trademark infringement occurs when a second user's use of the trademark is likely to confuse consumers as to the origin of products or services.

The use of a graphic trademark -- for example, the Playboy bunny logo -- to link to the trademark owner's site could be trademark infringement if the consumer is likely to be confused into believing that the linked site (the site that owns the graphical trademark) is associated with or endorses the site doing the linking.

Copyright infringement. It is not a violation of copyright law to create a hyperlink but it is a violation of the law to create a link that contributes to unauthorized copying of a copyrighted work if the linking party knew or had reason to know of the unauthorized copying and encouraged it.

EXAMPLE: A website posted infringing copies of a church's copyrighted handbook at its site. The website was ordered to remove the handbook but subsequently provided links to other sites that contained infringing copies of the handbook. These links were different from traditional hyperlinks, because the website knew and encouraged the use of the links to obtain unauthorized copies. The linking activity constituted contributory copyright infringement. Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc, 75 F. Supp. 2d 1290 (D. Utah 1999)

Framing

"Framing" is the process of allowing a user to view the contents of one website while it is framed by information from another site, similar to the "picture-in-picture" feature offered on some televisions. Framing may trigger a dispute under copyright and trademark law theories, because a framed site arguably alters the appearance of the content and creates the impression that its owner endorses or voluntarily chooses to associate with the framer.

Example: A dental website, Applied Anagramic, Inc. framed the content of a competing site. The frames included information about Applied Anagramic as well as its trademark and links to all of its Web pages. A district court ruled that the addition of the frame modified the appearance of the linked site and such modifications could, without authorization, amount to infringement. Futuredontics Inc. v. Applied Anagramic Inc., 1997 46 USPQ 2d 2005 (C.D. Calif. 1997). 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. Framing is often used in conjunction with inlining to deliver search engine results. Courts have held in two cases, discussed below, that such uses are permitted as fair use.

Inlining

"Inlining" is the process of displaying a graphic file on one website that originates at another. For example, inlining occurs if a user at site A can, without leaving site A, view a "cartoon of the day" featured on site B. IMG links -- a special type of link -- can be used to display graphic files on one site that are stored on another.

In 2002, a federal court of appeals ruled that it was not an infringement to provide inlined links to "thumbnail" reproductions, based on fair use principles (Kelly v. Arriba Soft, 280 F.3d 934 (9th Cir. 2002)). It is not clear, however, whether inlined links to full-sized reproductions constitute an infringement and -- until there is a clear ruling on that issue -- you should presume that inlined links to full sized reproductions are not automatically excused as a fair use. In 2007, a federal appeals court again permitted the use inlined links for thumbnail reproductions ( Perfect 10, Inc. v. Amazon.com, Inc. CV-05-04753-AHM (9th Cir., May 16, 2007)).

Getting Permission

The simplest method of avoiding linking, framing, and inlining problems is to seek permission, especially for these types of links:

• deep links that bypass a linked site's home page
• graphic links comprised of trademarks from the linked site
• links that result in framing, and
• IMG links that pull full-sized images from a site.

Once permission is obtained, you can sign a linking agreement. A linking agreement can be as informal as an email authorization stating, "You have permission to link to our website's home page using the words [insert the words in the link]."

Using Disclaimers

If a website owner is concerned about liability for links but is unable to obtain, or unwilling to seek, permission from the linked site, a prominently placed disclaimer may reduce the likelihood of legal problems. A disclaimer is a statement denying an endorsement for or from another site or waiving liability for a potentially unauthorized activity. A disclaimer is rarely a cure-all for legal claims, but, if a disclaimer is prominently displayed and clearly written, a court may take it into consideration as a factor limiting damages.

To minimize liability for any activities that occur when a visitor is taken to a linked website, a webmaster may want to include a linking disclaimer on its home page or on any pages with otherwise troublesome links.

For More Information

For help unraveling the legal issues surrounding intellectual property, read Patent, Copyright and Trademark: An Intellectual Property Desk Reference, by Richard Stim (Nolo).