Re: Linking a page into a frame

On 02/01/97, Leo Smith wrote:
>

>>> Leo Smith wrote..
>>> 
>>> [... concluding that the copyright owner has no right to complain if
>>> someone else puts their stuff into a frame]

> To which Carl Oppedahl responded:
> >
> > This sounds all too much like the argument that the book publisher
> > publishes its book knowing full well that there are photocopiers out
> > there, and thus cannot be heard to complain if someone copies the
> > book. The mere fact that something is physically possible doesn't
> > make it legal.
>
> No, Carl, your above analogy is way off base.

Well, I guess we disagree. It hardly matters, since what matters is what courts say. I believe they will take my view, not yours.

> The book publisher has no control over the use of the photocopiers
> out in the public arena.

No control? The book could perfectly well have been printed on anti-copy paper, that paper that shows up as black when it is hit with the light from the copier. Or it could be perfectly well printed with many colors, some of which, when converted to gray scale, are the same as each other. Thus there are technical steps the publisher could take to block such copying. By your argument, the publisher that fails to take these technical steps is consenting to unlimited photocopying.

Such a conclusion is (in my view) absurd, and to say the same for web sites would likewise be absurd.

> A copyright holder who puts materials on the Internet actually makes ALL
> of the copies and sends them out. The copyright holder's host computer
> stores the web page. When a third party "points" to the copyright
> holder's URL site, the third party's computer sends a request to the
> copyright holder's computer, requesting that the data from that file be
> transmitted. Since the Copyright holder's host computer always retains
> the web site file information, it literally makes a copy of the 0's and
> 1's and sends them out via the Internet to the third party's remote
> computer. It is the copyright holder who actually makes copies and sends
> them out to whomever "pointed".
>
> If it is the case that the copyright holder's own computer made every
> copy and sent them out, without attaching any framing restrictions, a
> copyright infringement claim would be without foundation.

Well, what you've said isn't quite correct. Consider, as simple example, the existence of intermediate web caches. If two different AOL customers happen to call up the same page within a few minutes of each other, the second one will simply receive a cache copy. The copyright holder's web site only sends out one copy, the first one.

Consider also the existence of client-side caches. I can call up a URL four or five times the same day, and all but the first one come from my hard disk, not from the server.

> So the analogy to the book publisher is accurate only if the book
> publisher invites the public to take his book to any photocopier and
> make copies, since that is squared on all fours with what the web site
> copyright holder does when he opens up a web site with no access control,
> and no framing controls, and when he further instructs his OWN computer
> to make copies of the web site files to anybody asking to see a copy.

The invitation that you imagine being made by a book publisher, that invitation is not merely inferred from conduct but instead you imagine a text message communicated by the publisher, right? You imagine a text message saying "you are invited to take this book to any photocopier and make copies." For such a thing to happen, the publisher must necessarily know that photocopiers exist, right?

Yet, without any justification, you are prepared to make the leap that mere conduct of setting up a web site counts as making an invitation to place something into frames. Such a leap is unjustified. The web site owner may be unaware that there is such a thing as frames, in which case how can you possibly claim that the web site owner's state of mind is that of consenting to it? And in any event, you are also leaping to such a far-fetched consent *merely from conduct*, where in the publisher case you feel the need to imagine a text message conveying the permission. Let's be consistent about this.

No, the question of what the implied permission is, that is automatically granted by anyone who sets up a web site, that question cannot be so simply answered as you claim to be able to answer it. You position apparently is that the implied permission is to do anything with the web site contents that is technically and physically possible on the part of the visitor (including things that the web site owner is unaware of that are technically and physically possible). No court (at least, none that I am aware of) has ever accepted such a view.

Your view seems to be a sort of "might makes right". Taken to its extreme, it is as if you are saying, this fellow did not put a burglar alarm on his car, he did not use The Club, it is technically possible to use a coat-hanger to pop the door latch and take the car, therefore it is perfectly okay to take it, and indeed he consented to it.

But wait, you might say, that's not what I mean at all. We live in a society where it is illegal to steal cars, there are laws about this. Mere physical do-ability doesn't make something legal where car theft is concerned.

Well, we also live in a society where there are copyright laws, and indeed our society places such importance on this that it is nearly uniform across all countries, due to the Berne Convention, an international treaty. And with copyright, too, mere physical do-ability doesn't make something legal.

Finally, what one must not forget is that frames can lead to forms of legal liability other than mere copyright violation. They can lead to a false designation of origin, they can lead to passing off someone else's work as one's own, they can lead to unfair competition, they can lead to libel.

Anyone who is going to use frames to surround someone else's work with one's own frame, should do so only after diligent consultation with competent counsel, after due consideration of all the possible areas of liability (not just copyright).

Carl Oppedahl
<carl[_at_]oppedahl.com> Received on Mon Feb 03 1997 - 14:15:48 GMT