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Linking, Framing, and Metatagging

Shetland Times, Ltd. v. Jonathan Wills and Another, 1997 F.S.R. (Ct. Sess. O.H.), 24 October 1996

Summary

Although considered the first "linking" case, Shetland Times, was not a case, as some have reported, challenging the validity of hypertext links. The issue in Shetland Times was far narrower - whether "deeplinking" to internal or embedded pages of the Shetland Times' ("Times") web site by the Shetland News ("News") through the use of the plaintiff web site's news headlines was an act of copyright infringement under the United Kingdom's Copyright Designs and Patents Act of 1988. In Shetland Times, the plaintiff sought, and received, an injunction precluding such deeplinking. In granting the injunction, the court held only that the plaintiff had presented a prima facie case of copyright infringement under the Act because it could not be said that the web sites at issue were not covered by the Act or that the Times's headlines which the News had used as linking text were not protected under the Act as "literary works." The News appealed this ruling and the matter settled before trial. As part of that settlement, the News agreed to link only through the Times's web site's front page and agreed to include a legend identifying the headlines as from The Shetland Times wherever such headlines were posted on the News' web site.

Analysis

The Shetland Times suit involved two news services located on Scotland's remote Shetland Islands, the Shetland Times ("Times") and Shetland News ("News"). In early 1996, the Times applied to the Scottish High Court for an interim interdict, the legal equivalent of a preliminary injunction in the United States, against Dr. Jonathan Wills, a former editor of the Times and current managing director of the News, and Zetnews, Ltd, the operators of the web site that carried the Shetland News. In its application, the Times sought an order precluding the News' deeplinking and bypassing the Times's front page through the use of headlines/links and alleged that the News's conduct amounted to copyright infringement under the United Kingdom's Copyright Designs and Patents Act of 1988 ("Act"). To obtain the interdict or injunction, the Times needed to demonstrate only that it had presented a prima facie case of infringement under the Act.

Since March 1996, the Times has operated a web site where it posts articles which also appear in its print newspaper. The Times went online with a view of the web site's potential to eventually yield advertising revenue. Advertising on the Times web site appears on the front page but not on the embedded pages.

The News opened its web site in November 1995. At the time the interdict was sought, the News web site also contained front-page advertising as well as headlines from various sources, including the Times. The News set the headlines up as hypertext links to the originating web site so, by clicking on one of the headlines, the News reader accessed the accompanying article at the web site on which it appeared. When accessed by this method, any frame or identifying materials that might also appear on the linked page were hidden to the reader. Thus, when accessing an article from the Times, News readers clicked on the Times headline that appeared in the News web site and then were transported to the embedded page on the Times web site where the article appeared. The Times front page with its advertising was bypassed and the Times frame, which surrounded the embedded page, was removed from view.

The Act was drafted to regulate the cable television industry and predated the Internet. The Times, however, contended that 20 of the Act precluded the News from using the Times headlines and deeplinking the Times' embedded pages. To fall within the scope of the Act, the Times argued that its headlines were "cable programmes" as defined by the Act and that its web site was a "cable programme service" which 7 of the Act defines as:

a service which consists wholly or mainly in sending visual images, sounds or other information by means of a telecommunications system, otherwise than by wireless telegraphy, for reception (a) at two or more places (whether by simultaneous reception or at different times in response to requests by different users); or 2) for presentation to the public....and which is not, or so far as it is not, excepted by or under [other] provisions of this section.

In addition, the Times further claimed that under 17 of the Act the Times' headlines that the News "stored by electronic means" on its web site were literary works worthy of copyright protection in their own right.

The News countered that the Act did not apply. The News maintained that neither web site fit the definition of "cable programme service" because the neither web site "sent" the news articles to the reader. The News alternatively argued that if one of the web sites did qualify as a "cable service programme" by virtue of its "sending" of articles to the reader, that web site was the News' web site. In addition, the News contended that both web sites were exempt from the Act as "interactive" mediums because both accepted "comments and suggestions" online. Finally, the News conceded that in some cases headlines may be viewed as "literary works" but maintained that the headlines at issue were not and, thus, were not entitled to protection under the Act.

Lord Hamilton determined that the Times had met the lower evidentiary standard necessary to obtain the interdict. In issuing that interdict, however, Lord Hamilton carefully noted that the evidence before him was extremely limited and that the case might ultimately turn on technological evidence yet to be presented. Lord Hamilton decided on this limited record that The Times had presented a prima facie case that its headlines and articles on the Times web site were "cable programmes" which were being "sent" by the Times web site, which thus qualified as a "cable programme service." Moreover, the presence of the "comments and suggestions" page, although it perhaps made both web sites somewhat interactive, did not place the web sites within the scope of the exemption because the interactive portion of the web site was arguably a severable part of the News' web site's primary purpose - to distribute news. Lord Hamilton determined further that, because the News conceded that at least in some instances headlines could be deemed "literary works," and since at least some of the headlines at issue consisted of "eight or so words designedly put together for the purpose of imparting information," a prima facie case of copyright infringement under 17 of the Act was also presented.

The News appealed the order and the case was set down for trial in the Edinburgh Court Session. As plaintiff (or "pursuer" in Scottish legal jargon), the burden of proof at trial remained with the Times. The evidence at trial was to include a demonstration of the technological aspects of the case through a live Internet connection, presumably to assist Lord Hamilton in determining which web site was, or was not, "sending" the articles. The demonstration never took place because an Internet connection could not be established. Within hours of that failure, the case settled. Under the terms of the settlement the News was not allowed to "deeplink" to the Times as it had been. Instead, the link was to the Times' front page and the headlines that appeared on the News web site had to appear on a page which included the legend "A Shetland Times Story" in the same size or larger than the News' corresponding legend.


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