Linking, Framing, and Metatagging
Background NotesLinks are the heart and soul of the Internet. By using hypertext markup language to identify "hot" text or images, web sites are connected by links. The linking process is generally the same whether the linking occurs between pages within a single web site or between pages on different web sites. Three basic linking methods exist: hypertext reference linking, image or inline linking, and framing. A basic understanding of the fundamentals of each method is necessary to understand the legal issues that surround them.
The hypertext reference link is the original and still most prevalent type of link found on the Internet. Hypertext links appear as highlighted, different colored and/or underlined text on a web page. Clicking on a hypertext link transfers the reader from the web site containing the link to the linked page and the URL changes to that of the linked page. Image links, on the other hand, transport images from one location on the Internet to the web site containing the link. Image links enable web browsers to use images appearing on a page in the same manner as if they were text. Thus, when an image link is clicked, the image identified by the link is accessed on the linked site, copied and transported to the original web site where it is then reassembled for viewing. The URL does not change and the reader does not necessarily know that the linked image now appearing before him actually resides elsewhere on the Internet. Framing is a linking method whereby the linked site is "framed" within a predetermined section or "frame" on the site being viewed. Reproduction of the linked site through a frame can distort the content of the linked site to make it fit the frame. Like an image link, a frame-based link does not disrupt the connection to the original web site and the URL remains unchanged.
Netizens have historically viewed linking, with or without permission, as an "Internet right" beyond reproach. The growth of e-commerce is arguably changing that opinion, however. Where once the intention was to freely share and make available information, with increasing commercial activity it has become desirable, and probably necessary, to protect, defend and control access to web sites and their content. Although many web site owners seek to assert such control through the use of technology and linking agreements, others choose the courts. In such cases, web site owners and operators usually rely on copyright, trademark and unfair competition laws to limit access to their sites or, at the very least, control how the site is linked to, and by whom. For example, in the oft-cited Shetland Times, Ltd. v. Dr. Jonathan Wills and another, the plaintiff newspaper, relying on United Kingdom copyright law, obtained a preliminary injunction enjoining the defendant newspaper from linking or, more accurately, "deeplinking" directly to its embedded web site pages. Similarly, in the much reported United States case, Ticketmaster v. Microsoft, the plaintiff also relied primarily on trademark, copyright and misappropriation law in seeking a court decree banning Microsoft's "deeplink" to embedded pages in Ticketmaster's web site. In The Washington Post and Others v. TotalNews, Inc, the framing of the content from various plaintiff new organizations by the defendant, whose web site contained virtually no original content, was attacked as "parasitic." The lawsuit ultimately resulted in a settlement whereby the defendant removed its frames and agreed to use only hypertext reference links to link the plaintiffs' web sites.
Increasing consumer traffic to web sites, even at the expense of other sites, has also resulted in a fair share of litigation. Most consumers find web sites initially by using a search engine. Search engines index and identify sites by referencing the keywords or "metatags" that the site owner or developer includes in the web site's coding or otherwise provides to the search engine. Unscrupulous web site owners and operators can easily pirate metatags whole cloth from popular sites or simply use popular, sometimes trademarked, words as their metatags. Lawsuits have arisen where trademarked names such as Oppedahl & Larson are used as metatags by other unrelated web sites seeking a higher return rate from search engines, or where the offending web site seeks to imply a relationship between sites to lure or consumers to its site, as was the case in Playboy and Insituform. Such uses arguably infringe upon, and dilute the value of the "borrowed" trademarks, as well as cause potential confusion among Internet consumers. Defenses to such lawsuits include the first amendment and the doctrine of fair use. In fact, in the recent Terri Welles case, the court denied Playboy Enterprises, Inc., a preliminary injunction relying, in large part, on the doctrine of fair use.