Link vuelta hacia atrás

 

The linking law of the World Wide Web

                                                                      Ignacio Garrote Fernández-Díez

                                                                      Universidad Autónoma de Madrid

                                                                      e-mail: ignacio.garrote@uam.es

Introduction:

The World Wide Web (or simply the web), the best known application of the Internet[1], boomed after Tim Berners-Lee invented in 1989[2] as an easy, user- friendly, and dynamic way of connecting documents. These so-called links were conceived in order to enable researches to reach documents in complex networks more easily and efficiently. Linking is a powerful tool used in the Net, and for this very reason it has been very successful among the users.[3] Links have made the web a channel for free distribution of information[4], and during the early days of the Internet, when researchers and educators were the primary users of the web, its utility and necessity was not doubteb

This started to change when a greater number of companies began to sell products and deliver services via the new medium.

Some relevant cases[5] poses challenges now on the notion that linking is permitted in the web without any limitation, and many commentators have started to discuss not only when, but also if linking should be permitted at all when commercial interests are involved[6]. Linking rises concerns both in the fields of trademark and copyright, however, the paper will not address the trademark issues. This paper will focus entirely on copyright law.[7]

In Part one I will try to clarify the complexity of conceptual definitions that is involved in linking. In Part two I will refer to the main problems of copyright law that linking creates, and in Part three, I will look at the doctrinal positions that have been taken by the legal community. In Part four I will offer my own position on the issues, and draw some conclusions about one of the hottest topics not only for copyright law but also for the law of cyberspace in general. 

Part one: Types of links:

One of the main problems presented in the analysis of the Law of Linking is the confusion of categories. Almost every commentator has her own definition and classification of links. To add to this confusion is the process known as framing.

I will discuss this issue taking into account the various classifications and putting together those that use the same criteria, even if the names that are given to the different kinds of links are different.

The summa divisio separates the Hypertext Reference link (HREF) from the "frames"[8].

The HREF links:

The HREF links[9] merely contact the user with another URL[10] and displays the content of the linked site into the user's screen[11]. It is worthy to note that this process merely pulls one image, text, video, sounds or a combination of all of them from the copyright owner's site to the user’s computer. Displaying both the URL and the full content of the linked site, so the user is aware that she is browsing a new web site.  This kind of process is also called "direct link"[12], "site link"[13], "hyperlink"[14], or "hypertext link"[15].

 It is important consider that various sorts of HREF links exists, even though  commentators do not agree on whether they should be taken into account as a separate category or not, I will include them as subcategories of HREF links, following the opinion of one of the founders of the WWW.[16]

 First there is the "normal link”[17], as opposed to the "embedded link", also called "In-line" or "IMG (image) link"[18]. The normal link merely instructs the browser to call up other document of the web, which replaces the original document on the user's screen.[19]These are also called "HREF links" in general[20], and are visible to the user as a connector between two documents.[21] 

 Some main features of the normal links are:

·         They come into play when selected by the user with the mouse or a few keystrokes[22]. Usually, they are highlighted in blue or white, so they are easily identified as links and are distinguished from the other elements of a web site. 

·         They do not create an "extra copy of the work" other than the one that is crated in the RAM[23] of the user's computer that enables her to browse the web pages[24]. The HREF link is a shortcut to avoid the typing of the URL, and in that sense it does not grant  the exclusive right of the copyright owner more than browsing a web page does.

·         The HREF links are simply references to other documents already available on the web, and have no implied meaning in themselves.[25] Basically they can be considered  the electronic equivalent of citations in the printed book world.

·         A link can be established without the knowledge or consent of the owner of the linked site[26], is a very easy process that can be done automatically by the normal, commercial browsers.

  The embedded link, also known as IMG link is an electronic processes that is automatically activated when the web page is loaded. The Webmasters use this link to "call up" a graphic image, text, video or sound that is in fact part of other web site, but appears on the screen as an embedded part of the first one[27]. While the file appears to be included in the current site, in fact is stored in other page, probably belonging to other owner. The remote parts are included by reference, and without having to make a separate local copy.[28]

Frames:

In January 1996, Netscape Communications Corp. introduced on its browser Navigator 2 a command in HTML that enables a viewer to see the screen split in several smaller windows or frames[29]. Each window is displayed on a separate portion of the screen, and functions independently to display an individual web page. This enables the user to maximize the possibilities of her computer when surfing the web.[30]

From the copyright point of view the problem is that the user sees the content of a web site (in many cases with copyrightable works) framed by a different web site and with the URL of the latter displayed on the tool bar. It could be argued, then, that a derivative work is created. 

Framing allows an original site to incorporate contents of other web sites, while still retaining its advertising, its own logo displayed on the screen, and the control of the viewer[31].

The user still is still able to see the entire framed site using the scroll bar, but the origin of the framed site it is no longer clear for her, because the framed URL is not displayed[32]. It is important to note that contents of the framed site are not altered[33], only its appearance.

 Part two: The challenges of linking for copyright law

In this section all  the possible kinds of links will be distinguished, because each one poses a different challenge for copyright law.

HREF links

·         Normal links:

 First of all it has to be noted that the normal link is merely a site's URL. A URL is the electronic equivalent of the addresses[34] in Feist Publications, Inc. v. Rural Telephone Service Co.[35], and are facts not protected by copyright law. For the same reason, links cannot be individually copyrighted. However, a web site consisting of a list of links could be considered under U.S. law compilation subject to protection, if the arrangement and selection of the facts is sufficiently original according to the Feist doctrine, which sets a minimum standard of originality.

 At first sight from a copyright point of view, none of the rights of the copyright owner are involved when someone creates a link on her web page to another document that already is made available by the rightholder on the web. The link does not create a copy of the linked site (other than the RAM copy necessary to display every document on a computer screen), nor does it transmit the content of the linked site to the user's computer[36]. In this sense, the threshold question is if copyright law can be applied at all to these situations. 

It could be argued that the RAM copy is a "copy" within the meaning of the copyright act[37], as the Ninth Circuit in MAI Systems Corp. v. Peak Computer, Inc.[38] held. In this sense, the general act of linking could lead to copyright infringement of the reproduction right. One should consider the problem of temporary reproductions on digital networks here in relation with the reproduction right, in order to understand the legal background of the problem[39].

 The issue of temporary copies on computers as of yet has not been resolved so far in the international arena. The WIPO Copyright Treaty, as it was originally drafted[40], contained a proposed Article 7 that would have included the temporary reproduction subject to the permission of the copyright owner, under the reproduction right[41]. After days of discussion and lobbying by groups of scholars, researches, and telecommunications companies, the proposed article 7 was voted and rejected, disappearing form the final language of the Treaty[42].

 In the last hours of the Diplomatic Conference, however,  an agreed-upon statement was voted in relation with the scope of art 1(4) of the treaty[43], stating that: "The reproduction right, as set out in … the Berne Convention and the exceptions thereto, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in a digital form in an electronic medium constitutes a reproduction within the meaning of the Berne Convention"[44].

The legal value of the Agreed Statement is unclear[45], and commentators heavily doubt that it will be the definitive answer for the issue among the international copyright community[46]. These kind of documents have a special role when interpreting ambiguous treaty provisions according to the Vienna Convention on the Law of the Treaties[47], but even during the Diplomatic Conference in Geneva some delegates thought it did not satisfy the standards for binding treaty interpretation[48].

In the United States, the MAI and Religious Technology Center v. Netcom On-Line Communication Serviced, Inc,.[49] cases suggest that temporary copies made in RAM are copies sufficiently fixed for the purposes of the Copyright Act of 1976. The White Paper[50] issued by the Clinton Administration took the same view with respect to temporary copies. Other recent cases, like Marobie-FK, Inc, v. National Association of Fire Equipment Distributors[51], have followed the Mai and Netcom rulings, and this implies that, at least for the courts, linking involves copying.

A majority of scholars and researchers think that temporary reproductions should no be considered[52] as copies in the meaning of the Copyright Act, even when taking MAI into account, because this gives the copyright owner an unprecedented degree of control over the work, and thus hinders the free flow of information. This also would shift the balance of the Copyright Act[53] merely for technical reasons, without a policy decision explicitly made[54]

Others, remarkably the group of copyright owners[55] and some scholars[56], agree with the MAI court[57]and find that the copyright owner's economic rights are being infringed when a mere temporary or incidental copy is made[58].

It is very important to note that even if some of the exclusive rights of the copyright owner come into play, the direct infringer would be the party that actually makes the copy (the user). The author of the web page (the creator of the link) may be a contributory infringer.  However, if the user is not an infringer, or is excused, the author of the linking site cannot be a contributory infringer.[59] 

The European Union, on its Proposal of Directive for Copyright and Related Rights in the Information[60] Society, has already taken the view that temporary copies, other than ephemeral copies made in the process of a document being transmitted on the Internet, should be considered as falling into the scope of the reproduction right, and thus requiring the copyright owner's permission[61]. 

This solution is consistent with the acquis communautaire, and has been taken over, extended and combined, from article 4 of the Software Directive, article 7 of the EC Rental and Lending Directive and article 5(a) of the Databases Directive.[62]n The Commission has consistently taken the approach that every act of reproduction, in any manner or form, should be covered under the reproduction right[63]. One commentator thinks that the interest of the user and the public in general should be taken into account via exceptions and limitations, to achieve a proper balance.[64]

Eventually, if an HREF normal link is created, a RAM copy is not yet made on the user's computer, it is only when the user activates the link (the user clicks on it with the mouse, for instance) that the RAM copy is stored on the user's computer's memory. The hypertext link is a mere reference, but the fact that a good part of the doctrine a and the EC think that a copy is indeed made when a HREF link is created opens the debate about finding an appropriate defense, such implied license or fair use.[65] 

In practice, the issue has not been solved as of yet. However, a few cases involving direct linking have already been raised.

In the Scottish case Shetland Times v. Jonathan Wills and Zetnews the Shetland News, a newspaper, set up a web site including the headlines copied from its competitor, the Shetland Times. By clicking on the links, the readers had access to the entire article, as they accessed the Shetland Times' web site. 

Although normally the web site owners welcome this practice and are happy if links to their web sites are established, (exposure is the most important thing on the Net) in this case the Times claimed that it had a copyright on the headlines, an that its competitor's practice could mislead the users into thinking that the articles were part of the Shetland News[66].

The Scottish judge, Lord Hamilton, granted an interim interdict[67] to stop this practice, based on Scottish cable programming law, and the case was finally settled out of court. 

·         Embedded links:

These sort of links have a very clear function in the Net, they are used to call up images stored on the author's web site or in other person's web site. The image called up by the embedded link is seen visually as a whole by the user, but technically no copies are stored or made on the part of the linking site.[68]

The same reasoning that has already been made for the normal links applies for the embedded links as well  in respect with the temporary copies made on the user's computer's RAM. However, there are special copyright considerations for these kind of links, as far as they can consist of copyrighted images that are displayed in a way the copyright owner cannot control, as part of another site.

 In this sense, it seems clear that these sort of links are more than the old plagiarism because even if they do not violate the reproduction right, they clearly violate the public display right[69] by displaying the image in a "place open to the public”[70].

Frames

In framing, the reproduction right of the owner is clearly not involved with respect to the provider of the link, since no part of the web site is reproduced by the linking site due to the technical process of framing. The link provider actually never copies the linked site, and the copying element for being directly liable cannot be satisfied.

 However, the user creates a RAM copy that can arguably be a derivative work and thus the threshold question becomes whether a derivative work has been created[71].

There are two relevant cases in this area. In Mirage Editions, Inc, v. Alburquerque A.R.T. Co[72]., the defendant was found liable when he resold some photos he had previously purchased mounted on tiles. The author of the leading treatise on copyright has criticized Mirage[73], and in Lee v. A.R.T[74] Co., with similar facts involved, the Seventh Circuit held that buying notecards and mounting them on ceramic tiles did not create a derivative work in the sense of the Copyright Act. It is then unclear if framing creates a derivative work. The Seventh Circuit notes the Mirage test implies that "any alteration of a work, however slight, requires the author's permission" and poses "through the back door an extraordinary broad version of author's moral rights".[75]

It might be worthy to note that the Visual Artists Rights Act excludes from its scope of protection "electronic publication or similar publication", and is only applied to tangible goods with a limited amount of physical copies.[76]

Another important case that  should be taken into account in this field is Lewis Galoob Toys, Inc. v. Nintendo, Inc.[77] In this case,  the Ninth Circuit held that the audiovisual displays produced by a device called Game Genie, which altered  Nintendo games as they appeared on the screen, did not constitute derivative works. This case suggests, that the standard for a derivative work being created in the digital context should be higher that in the analogue world, thus enabling the creation and dissemination of more works.

The first case which dealt with the practice of framing was filed in 1997, by a group of newspapers and media companies led by The Washington Post[78]-. This group sued Total News and others on the basis of copyright and trademark arguments, including misappropriation, which was in fact the heart of the complaint[79].

 The plaintiffs objected the use of their logos in the HREF symbols, and the fact that their sites were framed with the advertising of Total News. The case was settled, but it is now clear framing can be actionable under copyright law. One commentator notes that Total News continued to frame sites belonging to companies that were not a party in the settlement, meaning that Total News did not believe that what they were doing was wrong[80].

 In Futurodontics, Inc. v. Applied Anagramics, Inc, AAU reproduced web pages from the Futurodontics site within a frame.[81] A District court[82] issued an order denying a preliminary injunction, and found that the plaintiff had not offered sufficient evidence that the defendant's framed link created a derivative work, citing Lewis Galoob.

 The issue till this day remains unsolved in practice, and it is the task for the legal doctrine to debate the appropriate legal rule for framing in the field of copyright and trademark law.

Part three: legal solutions for linking in the World Wide Web:

HREF Links:

·         Normal links:

 The European Union, on its Proposal of Directive for Copyright and Related Rights in the Information[83] Society, has taken the view that temporary copies, other than ephemeral copies made in the process of a document being transmitted on the Internet, should be considered as falling into the scope of the reproduction right, and thus requiring the copyright owner's permission[84]. 

This solution is consistent with the acquis communautaire, an has been taken over, extended and combined, from article 4 of the Software Directive, article 7 of the EC Rental and Lending Directive and article 5(a) of the Databases Directive.[85]The Commission has consistently taken the approach that every act of reproduction, in any manner or form, should be covered under the reproduction right[86]. 

One commentator thinks that the interest of the user and the public in general should be taken into account via exceptions and limitations, to achieve a proper balance.[87]

 Even if we assume under the RAM "copy" theory that some of the exclusive rights of the owner are involved, there can exist excuses or defenses for the user to avoid liability as a direct infringer.

The traditional culture of the web[88] permits web pages creators to freely link their web sites with the web sites of others without requesting permission to do so from the owner of the linked site.[89] 

With the rise of companies that use web sites as cybergates to offer good and services to the consumers, the situation has changed[90]. Some consider that a link in some way is an incitement to copy the linked document, or that the linked document is endorsed by the linking document. This is, in opinion of Tim Berners-Lee, a "serious misunderstanding"[91]

The prevalent position in the commentators is that not permission is required from the web site owner before making a link to her site[92]. This arises from two main legal doctrines: Implied license and fair use:

A)     Implied license

The most extended theory among the commentators is that the owner of a web site is in fact giving an implied license to link when she poses a document on the web.

The owner knows that the web is navigated by links and, indeed, linking is by far the more usual way to access a document that is posted on the Net[93]. The user is not a direct infringer, and the author of the link cannot be a contributory infringer[94]. The mere fact of the publication of a web site amounts to creating an implied license[95], because the whole point of the Internet is to be able to link to other sites[96]. 

However, there are several problems with this solution.

First, it is unclear that an implied license could apply when the link is made to one of the site's interior pages ("deep linking"), thus circumventing the main page and the advertising placed on it. It is reasonable to argue that the owner of a web site grants a license to browse the site, but in the way the creator of the web site intended and designed it.

 However, at least one commentator thinks that the argument of an implied license is still tenable even in the event of linking to deep pages into a web site.[97] 

The main reason to sustain this position is that it is common in the web to establish bookmarks to interior pages, and a web site owner knows this when she places a web site[98]. In consequence, she should expect and bear those links, adapting the design of the site in consequence.

Other thinks that if a normal link connects to a web page other than the home page, the link provider has exceeded the license[99].

Second, the use of web linking agreements that explicitly state that permission is required can avoid the argument for an implied license.[100] Such web agreements are every day more common, and the implied license then cannot work against the clearly expressed will of the copyright owner, as agreed with the author of the linking site.

 However, even the defenders of these kind of agreements[101] recognize that the suggestion of a contract being necessary to link to web site seems contradictory to the ethos of the Internet, and suggest that, for normal links, these kind of agreements are not necessary. One can link without permission and without having to give notice to the copyright owner. 

The web linking agreements, according to this view, should still be useful for embedded links and especially for frames[102], and as a precaution measure taken by the operator of a commercial web site that wants to be sure that it will not face liability for the links that it is providing.

In addition, some owners have attempted to negate implied license by inserting "Terms of Use" that explicitly denies the existence of implied license to link, but these disclaimers are often inconspicuous, and may be considered unenforceable[103].

 Third, the implied license doctrine is a figure of contract law, essentially an estoppel doctrine, and it does not fit well with the traditional copyright law[104], because such a factual contract would not seem to arise between strangers that do not have a previous relation, legal or de facto.

Finally, in the case of copyrighted materials posted on web pages without the consent or the knowledge o the owner, it seems clear that this argument cannot work, because it is based on the premise that the owner knew that her material would be available on the Internet.

B)    Fair Use:

Fair use[105] appears to be the most common defense in cases that makes impossible the application of the implied license doctrine.

 In the case of normal links, one should take into account the four factors of the U.S.C.  S. 107[106], in respect to the user that is browsing a site acceded via a normal HREF link. If the user is simply browsing, the character of the use is not commercial, and the user is in good faith[107]. The linked work can be both factual or fictional, but the decisive factor is the fourth, and it is important to note that in the context of the World Wide Web the link in fact expands the potential market of the linked site, because more people is able to easily find an access the site[108]. 

Even if we admit that accessing a web site through a link does make a copy of the whole work, this factor does not have to be decisive, and one can well conclude that, at least in the majority of cases, fair use can be successfully invoked.

In conclusion, at least under copyright law[109], the user will be in most cases covered by either an implied license or fair use, and cannot be found a direct infringer. Because the user is not liable, neither is the linking site contributory liable. 

 This situation has been altered recently, as the Digital Millenium Digital Act of 1998[110] contains exceptions or safe harbors to cover the liability of online service providers (OSP) when they refers users to materials residing at other on-line locations, for example by means of hypertext links. The general rule is that the OSP are only exempted from liability if they meet certain conditions.

In my view, this provision suggests that, in the view of the legislator, linking will not be freely permitted on the web. The exception of liability means a sensu contrario that if an OSP sets a link and does not comply with one or more of the conditions, it will be liable. This seems to accept implicitly the theory that RAM copies are “copies” in the meaning of the Copyright Act, because otherwise the link provider could never be contributory liable.

·         Embedded links:

In the case of embedded links or IMG links, if we admit that a copy in the RAM of a computer amounts to a copy in the sense of copyright law, it is very doubtful that a defendant can successfully argue that there is an implied license for the use of the work in other web site, as a functional part of it, without the consent of the copyright owner.

This would lead in practice to deprive the copyright owner of all their rights in electronic form, via the inclusion of an image, text, video or sounds embedded in a web site, creating a seamless collage[111]. This is not a reasonable conclusion[112], and the implied license doctrine cannot be interpreted in such an extensive way.

As to fair use, the analysis of the four factors has to be made on a case by case approach, but we can conclude that unless fair use or any other defense applies, providing an IMG link amounts to copyright liability as a direct infringer.

If the provider of the link  fells under the definition of OSP of the DMCA, it would be exempted providing that it meets the conditions of the safe harbor.

Frames: 

In the case of framing, the existence of an implied license to frame is difficult to sustain as well, as far as framing is a relatively new development of commercial browsers, that web site owners did not necessarily took into account when they posted their materials on the web. Besides, the courts have noted that a license to make a derivative work is only granted if the copyright owner explicitly does so[113].

In fact, as one commentator thinks[114], if we consider framing outside the Internet context, it is close to the pirating of copyrighted materials in the paper world. 

As we have seen,[115] framing cannot make the link provider a direct infringer, but we must consider that the user might be infringe the right to authorize derivative works of the copyright owner. Fair use can be still a defense in those cases, making then the linking provider not liable for contributory infringement.

In the case of a frame, the first factor weighs in favor of the defendant, as the purpose of the link is not for commercial advantage. The user is merely browsing the site. In the same manner, the fourth factor, often the decisive one, weigh in favor of the defendant as well because more exposure in fact widens the potential market of the linked site.

The second factor may help the defendant if she is linking to factual works, as in The Washington Post v. Total News situation, and the third factor will be dependant of the case.

However, if we assume that the linking site itself is making a copy of the framed site,  (which does not happens with the current technology) we could find the creator of the frame liable, as the purpose of the link would be for commercial advantage, and the potential market of the framed site would diminish, if we understand that the language "potential market" includes advertising dollars lost due to the frame.

The exemption of the DMCA cannot work here, as in framing the right involved is the right to authorize the creation of derivative works, an the exemption has to be understood as tailored for cases when the mere provision of access to a site does not alter its appearance, but merely the reproduction right.

Part four: The future of links in the World Wide Web:

It is unclear how will be the future law of linking (if any) in the web.

In my opinion, it might appear the so-called "zoning" phenomenon.[116]The Internet will evolve into opened and closed areas[117], distinctions will be made based on pricing mechanisms, and commercial and non-commercial sites. If one has to consider which is the proper legal rule for linking in the Internet these distinctions should be considered.

 Professor Ejan Maakay points out that the ambit of property rights is essentially opened- ended[118], they may operate without being formally recognized as such in the law. Using Makaay's terminology, owners have already started to build their technological and legal fences to prevent others to link to their sites. O'Rourke notes that technological solutions and contract law might in practice be the solution for the conflicts linking produce[119].

Technological solutions for a web site owner might be requiring a password to gain access, or build dynamic web pages, that only appear when the user uses a certain program[120]. This could probably work for non-commercial sites, but is doubtful that will be efficient in commercial sites, due to marketing considerations.

It is also already possible to configure the web pages to recognize and denied links coming from unwelcomed sources. This is, in my opinion, the more logical conclusion for the linking problem, as it combines maximum exposure with preventing unwanted links. There are also technological means to prevent framing as well, causing the frame to be dissolved and enabling the user to see the entire framed page.[121]

 However, if one machine can do something, other can undo it. In that sense, one has to consider again the Digital Millennium Copyright Act, which amends the Copyright Act with respect to circumvention of technological measures. In my opinion, such command in HTML code rejecting unwanted links is a technological measure that "effectively controls access to a work, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work".[122] 

The impairing of such measure might be considered an act of circumvention[123].

 Purely legal solutions involve the necessity of a default rule about if linking should be permitted or not, absent Terms of Use, web linking agreements or any other expression about the will of the copyright owner.

Policy considerations, involving especially First Amendment concerns[124] and freedom of expression, suggest that explicit permission for linking to a web page should not be required. However, a web site owner should be allowed to notify a linking site that the link is unwelcomed in a particular case. With proper notice, the link should be removed in a reasonable period of time. 

This is not the solution chosen in the DMCA. By providing an exception for OSP when they meet certain conditions, it is implicitly stated that they could be liable in any other case. The implied assumption that RAM copies are subject to the copyright owner’ permission is in my view highly regrettable, and could lead to the hindering of free flow of information.  It is also dangerous for private parties that have been so far freely providing links, because they could be subject to liability by analogy with OPS, in cases when fair use an implied license cannot work. 

If the link is provided to a web site that only posts materials that are already on the public domain, the linked site owner might rely on other laws to prevent linking.[125]

It is difficult to say, however, if these rules should have been set out by the legislator or by the courts. Professor Trotter Hardy suggest than in the cyberspace is better, so far, to take a case by case approach, as we do not know how the Internet will evolve[126]. The DMCA seems to be an unlucky and maybe premature step towards the regulation of cyberspace.

As a conclusion one might expect litigation and legislation in the coming years about linking. The outcome of both of themmay be decisive for the future development of the Internet as a "new marketplace for ideas", as the Supreme Court once defined it[127].

[1] For instance, the state law of misappropriation, or trademark law.

[1] I. Trotter Hardy, supra note, at 462.

[1] Reno v. ACLU, 117 S. Ct. 2329 (1997).