Re: TotalNEWS & Derivative Works

Timothy Hughes <thughes[_at_]gtlaw.com.au> wrote:
>
> Terry Carroll <carroll[_at_]tjc.com> wrote
> >
> > The sites whose content is being framed by TotalNews clearly provide
> > at least an implied license for their content to be copied and
> > displayed, i.e., by a user connecting directly to their site.
> > Otherwise, you almost certainly have infringement even in the
> > ordinary mode of viewing, for the copy being made, and possibly
> > being publicly displayed.
> >
> > The question in my mind is whether such an implied license extends
> > to permit the work to be copied, not standalone, but embedded into
> > the work of others providers. If not, then the user is infringing
> > by going beyond the scope of the implied license, and TN is
> > contributorily infringing because its frame setup has no substantial
> > non-infringing use beyond causing a user to exceed the scope of the
> > implied license.
>
> If an organisation who maintain web sites are concerned about the
> scope of any implied licence granted through the publishing of
> material on the Internet, then they should take steps to expressly
> limit such a licence.
>
> For instance, someone like CNN (one of the complainants in the
> TotalNEWS case) could place a note on the bottom of their website
> as follows:
>
> "by placing material on the Internet, CNN is in no way authorising any
> other party to provide a link to this site where such a link places
> the contents of this site in a frame in that other party's site. The
> display of material from this site in a form different to the layout
> prepared by CNN is not permitted."

The size of the window in which I view a web page is completely out of the control of the web page publisher. If I happen to have a screen that has 1600x1600 resolution and I view a web page in a full-screen window, I will see a different layout than if I view the page in a tiled or cascaded window, or on a monitor with a lower resolution. Similarly, a framed web site is seen in an effectively smaller window, just as if I had a lower resolution monitor or viewed the web page in a non-full-screen window. Therefore, attempting to say that the CNN web page has a particular layout that is altered by framing (and only framing) is not accurate.

As to Terry's argument about the scope of the implied license, it would appear as though the license may already extend to viewing the content of a web page within a frame. When a web page is viewed within a browser, the browser places a frame (or window) around the content. Clearly the browser frame is unobjectionable to web publishers. However, it is functionally no different than the TotalNews frame. Indeed, were TotalNews to create a web browser that simply updated a small advertising space in the browser frame and a special bookmark file whenever someone logged onto the TotalNews site, would its use raise the same copyright objections? If it does, why haven't the same web sites objected to the encroachment of button bars, tool bars and other browser-based items on the size of the viewing window or other changes to the Netscape and Microsoft browsers that affect the viewing of web pages? This is not to say that what TotalNews has done is right or wrong, only that answering the copyright questions may not be easy.

George Galt
ggalt[_at_]us.net Received on Thu May 15 1997 - 15:41:56 GMT