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.