Re: [CNI-COPYRIGHT] Framing in a.k.a. Branding outside WebResources

Several suits have been brought against "framing"; most settled before a published decision was rendered. The most relevant published decision of which I am aware is Kelly v. Arriba Soft (9th Cir. 2002), in which the court held that a visual search engine displaying thumbnail versions of images, and providing links to the originating website, was a fair use; but that display of full-size images on the visual search engine site, taken out of the surrounding context of the originating site, was NOT a fair use. Though not technically a "framing" case, in my opinion [the case is really about inline linking], the court characterized it as a framing case, and it could be used to support your position that framing violates copyright law.

My personal opinion is that inline linking is different from framing, and that the type of framing you describe should not be a COPYRIGHT violation. Putting something on the Web must be considered an implied license to display it on the user's computer. So long as the complete display can be seen by scrolling up and down or right and left, the fact that it is framed by another site should, in my opinion, be a matter of unfair competition law, not copyright. But courts that enforce "terms and conditions" on a site, whether there is actual consent or not, would disagree.

I think the more applicable theory is unfair competition, i.e., that framing that might confuse the user as to sponsorship or origin. If it is confusing, it definitely should not be done. But I think most web users are saavy enough to understand that the framed site is not endorsing or giving permission to the framing site, so I don't think this theory should be upheld either, as a general matter.

Bottom line: I am of the opinion that framing is legal, so long as it does not mislead the public. But not all courts would agree with me, and the one published opinion of which I am aware suggests that framing without permission may violate the copyright act.

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu

>>> smithre[_at_]mail.ctsfw.edu 04/02/03 05:28AM >>>
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