RE: [CNI-COPYRIGHT] Framing in a.k.a. Branding outside Web Resou rces

Bob,

Websites object to framing because of loss of the control (i.e., money) of their websites.   If the first site can frame the second site's pages, then the user will continue to see the first site's advertising and the second site will lose money from advertisers.  Moreover, the first site will be manipulating and altering the appearance of the second site, and framing may confuse users as to which sites they are viewing.  While the law of framing is still in early stages, the best advise is to link to other websites rather than framing.  This avoids any potential liability.  I researched this a while ago, and here are some cases on the issue:

In Digital Equipment Corp. v. AltaVista Technology, Inc., 960 F. Supp. 456 (D. Mass., 1997), the court refused to allow the defendant to frame the then well known AltaVista website.  In granting the injunction, the court noted that Digital had created "one of the most recognized marks and use on the web".  The court specifically enjoined the defendant from:

"using on its Web page. . . a link (without any search boxes), direct
or indirect, to Digital's AltaVista Internet Search service that creates the false impression that ATI's Website is Digital's AltaVista Search Service."

Framing was also the subject of a suit filed by the Washington, Post, Time, Inc. and other publishers against an Arizona company.  Washington Post v. Total News, Inc., 97 Civ. 1190 (PKL) (S.D.N.Y., February 28, 1997) (http://www.ljx.com/internet/complain.html).  Total News used framing technology to display the content of sites from around the web with advertising sold by Total News.  When a user clicked on the trademarks on the Total News page, they were not linked to the plaintiff's site.  Instead the site was framed.  The site did not fill the entire screen, but only a portion of the screen.  The plaintiff's domain name also did not appear at the top of the screen as it normally would.  The Total News logo, domain name, and advertisements appear instead.   In addition to copyright claims, the publishers asserted trademark dilution and infringement, misappropriation, unfair competition and false advertising.  The case was settled and the settlement allows linking, but not framing. A copy of the Settlement Agreement is available at http://zeus.bna.com/e-law/cases/totalset.html or http://www.ljx.com/internet/totalse.html.

Also, another case suggested that framing copyrighted material on a website may create an infringing derivative work.  Futuredontics, Inc. v. Applied Anagramics, Inc., 45 U.S.P.Q.2d 2005 (C.D.Ca. 1998), aff'd with out opinion, 152 F.3d 925 (9th Cir. 1998) (preliminary injunction denied, but motion to dismiss also denied because plaintiff may establish copyright infringement if defendant's "framed link duplicates or recasts plaintiff's web page.").

Steve

Stephen R. Winkelman
Fennemore Craig
3003 North Central Avenue, Suite 2600
Phoenix, AZ 85012
602.916.5407 (phone)
602.916.5607 (fax)
swinkelman[_at_]fclaw.com
Internet, Branding, Trademarks and Global Intellectual Property 

-----Original Message-----
From: Smith, Robert [mailto:smithre[_at_]mail.ctsfw.edu] Sent: Wednesday, April 02, 2003 6:29 AM
To: CNI-COPYRIGHT Mail List
Subject: [CNI-COPYRIGHT] Framing in a.k.a. Branding outside Web Resources

Dear Friends:

Our IT department is doing a remake of our website and is pushing to "frame in" outside resources. What they propose to do is this:

When a person visits one of our web pages and selects a link pointing to an online resource, (subscription database, encyclopedia, open edoc, someone's website, etc.) our server will create a web page with our masthead and menus, request the page from the outside source, and put the outside resource on it. The effect is that our logo and banners appear to be a part of the outside resource.

My sources (maybe this list is one, but my memory is fuzzy) seem to suggest that this is frowned upon and that a number of such resources have
considered suing such sites for copyright infringement. I'm arguing that we should not frame in, therefore, because it creates ill will and may be
illegal (not something a seminary likes to do...)

The tech is arguing that the return path is important because we might loose
our users if this is not done and that pop up windows are annoying. He argues that if sites do not explicitly say we shouldn't do it, that we don't have
to. (which is ironic, since our site has anti-framing code on it)

Does anyone have any concrete evidence that I am correct as I try to convince the head-tech?

Bob

Rev. Robert E. Smith
Electronic Resources Librarian
Concordia Theological Seminary
Fort Wayne, Indiana
"Translatio traditio est."

                -- attr. St. Jerome

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For more information on Fennemore Craig, please visit us at http://www.fennemorecraig.com. Received on Fri Apr 04 2003 - 03:33:19 GMT