Links, Frames and Lawsuits:

The Complications of Web Information

By Edmund B. Burke


Sequence: Volume 33, Number 1
Release Date: January/February 1998

INTEROFFICE MEMORANDUM
News Goliath Corporation

PRO: Myron A. Ghast, Production and Linkage Dept.
EX: Dotson N. Whittle, III, Esq., Law Dept.
RE: Linking Agreement sent by Mega News

You have forwarded the aforementioned "Linking Agreement" to my attention for my legal opioni and advice on the same. You have also provided me with certain factual information that is pertinent to this matter and which is described below.

I have heard of these "Linking Agreements" in the computer press, but had hoped that I might worki through my tenure haere at News Goliath without encountering such an agreement. As you know, I will take early retirmenet in 1999 to avoid the embarrassment of explaining our legal rights regarding the "Year 2000" problems in our licensed software. This problem will turn up in most of the software that we obtained under my watch and I am reluctant to explain our legal rights, or lack thereof, to our upper management, especially in light of the probable havoc that will result.

In any event, several months ago our company established certain hyperlinks to news organizations on the World Wide Web. This plan was executed ina an attempt to ensure that the readers of our own Web site would always have ready access to the most current, and most widespread, national and world news. While this plan had a noble purpose, it has resulted in the current difficultires. These difficulteis will no doubt create vast embarrassment for our legal department, which as you know has no early idea how to cope with this mess.

I understand that the plan has aexpanded so that we now link to all varieties of Web sites, including Ticketmaster, Avis, the University of Claifornia and the Roman Catholic Church. I beleive that we can probably avoid litigation with the Church over this issue, as I do not believe that it has yet engaged an advertising agency to profit form the content on its Web site.

In any case, the Agreement in question has been prepared by the Mega News legal department and purporotts to give News Goliath permission to link to the Mega News Web site, provided that certain conditions are met. You have asked whether in fact our organization needs such permission, and whether we can in fact establish a hyperlink to Mega Nes without the necessity for such an agreement.

You have expressed concern over the terms of the Agreement. In particular, one term requires an acknowledgment by News Goliath of certain rights of Mega News. Theses rights include the following:

* Mega News has the absolute right to determine who may, and who may not, link to its site;
* Mega News has the right to charge royalties for linkage to its site (although Mega News will not charge royalites to News Goliath);
* Mega News forbids News Goliath from "framing" the transmitted pages, i.e. News Goliath may not desplay advertisement on a page which contains the Mega News content:
* Mega News may terminate the agreement at any time upon 30 days notice.

In my opinion, our organization will have a serious problem if it enters into this Agreement with Mega News. However, I believe we will also have a serious problem if we decline to execute this Agreement with Mega News. I take some comfort, therefore, in the recongmition that, regardless of my advice or the accuracy, reliability or relevance thereof, we will have a serious problem that cannot be laid at my doorsetep or otherwise charged to my behavior or lack thereof. If only this were true of the Year 2000 issue. However, I digress.

As you have pointed out, much of the value of the News Goliath Web site stems from its desirability as a "jump point" to other, more content-laden sites. Our advertisers are willing to pay for this and to the extent News Goliath is restricted from linking, we risk losing revenue and even the entire point of our site.

If Mega News terminated the Agreement, then we would be foreslosed by the contract from linking to its site. Of course, we are not currently subject to any such contractual prohibition.

However, you should know that there has been litigation over the linkage issue, and if we continue to link to Mega News without permission, we may be subjected to a lawsuit. Some companies have claimed that they have the inherent right to control the linkages into their sites, and that the rights to prevent an unwanted linkage is part of the rights enjoyed under U.S. copyright and trademark law.

You mention that we have recently linked to Ticketmaster. Please be aware that Ticketmaster filed a lawsuit against Microsoft, claiming that Microsoft's "Sidewalk" page had wrongfully deprived Ticketmaster fo revenue, by allowing users to linke directly to the Ticketmaster ordering area for events in Seattle. This allegedly deprived Ticketmaster of revenue that it would have gained had the netizens been required to navigate through Ticketmaster's own site (which contained advertising).

Furthermore, several news organizations filed suite earlier this year against TotalNews, which is a "news aggregator." TotalNews allows the netizen to download content from large news organizations (such as MSNBC or CBS News), with the content "framed" by ads on the TotalNews page. Several news organizations--namely Cable News Network, Dow Jones, Time, Inc., Times Mirror Co., Reuters News Media and the Washington Post--claimed in the suit that TotalNews infringed upon their trademarks and copyrights. The suit claimed that the "defendants provide little or no content of their own. Instead, defendants have designed a parasitic Web site that republishes the news and editorial content of other Web sites in order to attract both advertisers and users."

As you well know, my opinion will be that the law is unsettled in this area and that there is no assurance either way at this time as to any course of action you may choose. Therefore, it will not be possible for me to assume any responsibility in this matter. In any event, I am in enough trouble already regarding the Year 2000 software issue mentioned above.

However, you should recognize that the owner of a Web site does own the copyright in the content fo the Web pages, and generally has the right to control the disposition of the content. While a compnay that sets up a Web site must be deemed to give permission to others to visist and downlaod that content, I suppose it is possible that the Web site company might explicitly revoke this permission for any "unwanted" visitors.

Perhaps a Web site is like a restaurant, which is, after all, open to the public but which reserves the right to reject boisterous or unruly customers. It also presumably has the right to turn away customers who attempt to sell food and beverages (brought in via knapsacks) from their tables. However, I think it would be very unfortunate if the Web became entangled in these "Linkage Agreements," since these tend to inhibit the very qualities which have made the Web a success.

I further believe that there may be a substantial and important differency between simply establishing a "mere link" to a site, and enganging in "framing" as practiced by TotalNews. Forunately, your request did not differentiate between these methodologies, and I therefore will defer consideration of this issue until you once again submit your more specific request in writing. With any luck on my part you will be distracted enough by other concerns and will not be able to comply with these requirements in time to pin me down.

If I can be of any further assistance in this matter, please do not hesitate to let me know. Just leave voice mail.

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Edmund B. (Peter) Burke is a partner in the Technology Practice Group of Powell, Goldstein, Frazer and Murphy LLP, a law firm with offices in Atlanta and Washington, D.C. This colum is not legal advice. Legal issues are complex and require specific attention to particular facts. If you have a legal question, you should consult an attorney. [email protected]



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