"Linking" And "Framing"

A "link" is a set of commands in HyperText Markup Language (HTML) that when actuated by right-clicking a mouse directs your browser to another page.  The new page could be in the website you're viewing or it could be a page in another website.  A "deep link" is a link to an internal portion of another site instead of connecting your browser to the other website's home page.  In other words, you don't enter the site through the front door, you suddenly appear somewhere deep inside the other website.

An objection raised by a website to being "linked" from another website was rebuffed by the courts.  A website is intended to be public.  The act of placing a link on one website cannot be considered an invasion of privacy by the website which is the target of the link.  The same should be true of "deep links" since there is no right to force someone to enter through the website's home page.  Each of the pages is just as public as any other page.  An argument has been successfully made that there is an implied license to view the website and link to it.

":Framing", however, is different.  Framing is the copying of material from a second site and the presentation of the material in "frames" in the first site.  Go to "askjeeves.com" for an example where when Jeeves retrieves a site that may contain information you want, it frames the material rather than simply sending you to the site through links.  Framing raises many issues because the copying of the material may violate copyright and trademark rights.  For example, the Washington Post objected to the practice of another news company in framing the Post's articles in a website containing ads that profited the second news company.  The case was settled, probably because it was a copyright violation.  A similar case involving the Shetland Times in England reached a similar result.  The British court ruled that the "deep-linker" had to go through Shetland's home page to make clear it was the owner of the material.  One could say that this forced the "deep-linker" to come in the front door so its viewers knew where the news was coming from, but viewers are not making copies of the materials like the "deep-linker" was.  Deep-linking, therefore, seems like a violation of the copyright statute.   On the other hand, an injunction was refused in a similar case because the plaintiff could not present evidence of damage caused by the framing.

The better practice may be to ask for permission to link to the second website.  If permission is refused, it may be wise to limit links to the home page and not deep-link into the other website.

Law Offices of Douglas Clark Hollmann

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