Issues in cyberlaw
What online users
need to know
Biggest issues in cyberlaw
Intellectual property law vs.
the First Amendment: How
do we safeguard citizens
rights to protect the
intellectual property they
create with the First
Amendments guarantee of
freedom of speech and
freedom of the press?
Intellectual prop. vs. 1st Amend.
Key question for Web
page designers: Can you
legally link to any Web site
you want to?
Intellectual prop. vs. 1st Amend.
Key question for Web
page designers: Can you
legally link to any Web site
you want to?
Courts and case law:
probably not!
Intellectual property
What is intellectual
property? Property that
can be protected under
federal copyright,
trademark or patent law or
common law forbidding
unfair competition,
including misappropriation.
Copyright
Article I, Section 8 of the U.S. Constitution (ratified
in 1789) gives Congress the power to promote the
Progress of Science and the useful Arts by securing
for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and
Discoveries.
First U.S. copyright law passed: 1790!
Last major revision: 1976
Copyright law
Copyright law protects:
Literary works, including computer programs
and test questions
Musical works, both tune and lyrics
Dramatic words, including soundtracks
Pantomimes and choreography
Pictures (photographs, cartoons, paintings,
drawings), graphics and sculptures
Films and other audiovisual works
Sound recordings
Trademark
Definition: a word, name, symbol or device used
by a manufacturer or seller to identify and
distinguish his or her goods from those
manufactured or sold by others and to indicate the
source of the goods.
Examples:
The apple on Mac computers
The curvy shape of a Coke bottle
The word Oscar as name of the Academy Awards statue
The Playboy bunny symbol
Trademark
Can be registered with the U.S. Patent and
Trademark Office in Washington for 10-year periods
and re-registered as long as the trademark is used.
Trademark
The Lanham Act of 1946 protects
trademarks from:
Infringement: Use of a trademark by someone other than
the trademark holder, which could confuse consumers.
Dilution: Use of a trademark in an unwholesome or
degrading context
Misappropriation
Definition: The unauthorized taking of
someone elses investment of time, effort
and money. Also called piracy.
Examples:
International News Service copying news accounts from
the Associated Press
Radio stations ripping and reading verbatim accounts
from newspapers
Evolving law of linking
5 types of links have caused legal
problems for Web site owners:
Framing links
Deep links
Inline links
Links to third-party material
Links to content that infringes copyright
Framing
What it is: Technique that lets Web
page designers split Web pages into
multiple regions that can be scrolled
independently
First became possible in 1996 with
Netscape 2
Generally innocuous
Framing
Has provoked lawsuits when used by
Web page A to link to and display the
content of Web page B inside a frame
or border that makes it look as if A
generated the content that was actually
produced by B.
Washington Post v. TotalNEWS.com
Arizona-based Web site, TotalNEWs.com, was
linking to stories on various news sites and
displaying them, with the news
organizations logos, inside a Web page
frame that featured the TotalNEWS logo.
The problem: Some of the news
organizations thought it looked like the stories
werent theirs.
Washington Post v. TotalNEWS.com
February 1997: The Washington Post,
CNN, Time, Dow Jones, Reuters New
Media and other organizations sue,
charging that TotalNEWS had:
Misappropriated their content
Infringed on and diluted their trademarks
Infringed on their copyright
Washington Post v. TotalNEWS.com
Results:
TotalNEWS.com settled out of court and
agreed to stop framing the news
organizations stories
The organizations dropped the lawsuit
Most lawyers who advise Web site clients
urge them to avoid using framing links
Washington Post v. TotalNEWS.com
TotalNews
Web site
today
Deep links
What they are: Linking to a page other
than the home page, in other words to a
page deep within the Web site
Deep links
Has provoked lawsuits when they
provide a shortcut that allows Web page
users to bypass advertising on the home
page or other early pages in a Web site
Ticketmaster v. Microsoft
Microsofts www.seattlesidewalk.com, a
guide to the city of Seattle, included deep
links to the page in the Ticketmaster Web
site where surfers could buy tickets to
Seattle concerts.
These direct links allowed surfers to
bypass the Ticketmaster home page and
other Ticketmaster pages that contained
advertising.
Ticketmaster v. Microsoft
The problem: Ticketmaster wasnt
recording as many page views as it would
have if people directed to the site by
seattlesidewalk.com had started at the
home page.
Ticketmaster v. Microsoft
April 1997: Ticketmaster sued, claiming:
Microsoft had deprived Ticketmaster of the
right to control its trademark
Microsoft had diluted Ticketmasters trademark
Microsoft had falsely suggested an association
between Microsoft and Ticketmaster
Ticketmaster v. Microsoft
Result:
Parties settled out of court in January 1999
Microsoft agreed to link only to Ticketmasters
home page.
Some scholars thought deep links could be
seen as violation of the Lanham Act, as part of
federal trademark law that makes it illegal for
businesses to knowingly create confusion over
a trademark
Deep links
A great likelihood of confusion manifested
itself when Microsoft transferred users to the
ticket purchasing page within Ticketmasters
Web site because users could reasonably
believe that either the Microsoft and
Ticketmaster sites emanated from the same
source or that Ticketmaster sanctioned or
sponsored Microsofts Seattle Sidewalk.com
site.
Joseph A. Tontodonato
Deep links
Web sites are finding ways to
discourage deep linking through:
User agreements:
http://www.latimes.com/services/site/lat-terms,0,640523
0.htmlstory
Hiring vendors to charge Web sites that use deep links
Inline links
What they are: Links to image files
Cause a problem when they are used to
bring into a Web page images that are
copyrighted by some other person or entity
Kelly v. Arriba Soft Corp.
Arriba Soft Corp. operates
http://www.arriba.com/, a search engine
that used to show thumbnails of search
results.
California photographer Leslie Kelly
operates a Web site where he sells and
displays his photographs of the American
West.
Kelly v. Arriba Soft Corp.
When someone searched for photographer
Leslie Kelly on www.arriba.com, they would
get low-resolution thumbnails of the
photographs on his Web page.
Double-clicking on those thumbnails would
connect surfers, through an inline link, to
image files on Kellys Web page.
Kelly sued, claiming the inline links violated
his copyright on the images.
Kelly v. Arriba Soft Corp.
February 2002: U.S. Court of Appeals for
the Ninth Circuit ruled the thumbnails didnt
violate Kellys copyright, but the inline
links did.
Third-party links
What they are: Connections made
between one Web page or trademark and
some online content by someone not
affiliated with the company that owns the
trademark or the online content.
Third-party links
Typical case
Joe, owner of Web site A, builds a home page
and because hes such a fan of Coca-Cola, he
uses the trademarked Coke can on the page.
Thats risky enough, but he compounds the
problem by providing a link from his home
page to his favorite porn page.
Coke may sue, charging that Joe has
tarnished the Coke trademark by linking it to
porn.
Links to illegal content
What they are: Links to Web sites that
contain content that, typically, infringes on
someones copyright.
Universal v. Reimerdes
DVDs use technology called the Content
Scramble System to keep people from
illegally copying copyrighted movies.
In 1998, Congress passed the Digital
Millennium Copyright Act, which made it
illegal to traffic in technology that let
people overcome copyright protection
technology.
Universal v. Reimerdes
In the late 1990s, Norwegian teenager Jon
Johansen developed De-Content Scramble
System (De-CSS) technology, which
allowed decoding and copying films.
www.2600.com, the online site of the print
hacker magazine 2600, wrote a story about
De-CSS and linked to a copy of the code.
Universal v. Reimerdes
December 1999: Eight movie studios sued
www.2600.com, charging link to De-CSS
violated Digital Millennium Copyright Act
Court ordered 2600.com to remove the link
to the code.
2600.com did but appealed the ruling,
saying linking to illegal content wasnt the
same as posting illegal content.
Universal v. Reimerdes
2000: U.S. District Court for the Southern
District of New York ruled against
2600.com, saying linking to illegal content
was as bad as posting it
2600.com appealed that ruling
2001: U.S. Circuit Court of Appeals for the
2nd Circuit ruled against 2600.com, saying
linking to illegal content was as bad as
posting it
Universal v. Reimerdes
Questions:
Is linking to illegal content more like reporting
where something illegal is happening or more
like doing something illegal?
What are the implications of the ruling for
mainstream journalists?
Universal v. Reimerdes
Questions:
Is linking to illegal content more like reporting
where something illegal is happening or more
like doing something illegal?
What are the implications of the ruling for
mainstream journalists?
Bottom line
Dont frame someone elses content in a way
that makes it look like its yours.
Be careful about linking from a commercial
Web site to a point deep inside a commercial
Web site.
Dont plant inline links to copyrighted images
on your Web page.
Dont tarnish a trademark by indirectly linking
it with distasteful content.
Dont link to illegal content.
