Settlement Chills Web Link Operators

By Alan Gahtan - June 16, 1997

The lawsuit by six big media publishers against TotalNEWS was settled June 5th. TotalNEWS had launched its Web site on October 17, 1996 as a clearinghouse to the various news sources available on the Internet.

TotalNEWS derives its revenues through advertising which is wrapped around the content displayed from the many linked sites. This is accomplished by using the frames feature supported by popular Web-browser programs to divide a user’s screen into multiple windows or frames, each capable of displaying different content. Selecting a link from the TotalNEWS site results in content from the selected site being displayed in one frame while TotalNEWS’ URL, logo and Java-based advertising are displayed simultaneously in other frames.

CNN and the other plaintiffs objected to such framing of their sites and filed a lawsuit on February 20, 1997 in U.S. District court accusing TotalNEWS of trademark violations and copyright infringement. In addition to legal recourse, some Web site operators implemented technical solutions to prevent unauthorized framing of their sites.

The terms of the settlement include a license which permits TotalNEWS to provide links to the plaintiffs’ Web sites. The difference between linking and framing is that linking results in the linked site filling up the user’s entire screen without the previous site retaining control over the Universal Resource Locator ("URL") displayed at the top of the screen and advertisements displayed in the borders around the framed site.

TotalNEWS is permitted to provide links to the plaintiffs’ Web sites subject to certain conditions. The links may only consist of the names of the linked sites in plain text. TotalNEWS may not utilize any of the plaintiffs’ proprietary logos or other distinctive graphics as hyperlinks. As well, the links may not be done in any manner that would be reasonably likely to (i) imply affiliation with, endorsement or sponsorship by, any plaintiff; (ii) cause confusion, mistake or deception; (iii) dilute plaintiffs’ marks; or (iv) otherwise violate state or federal law.

TotalNEWS agreed to permanently cease framing of the plaintiffs’ Web sites in the manner complained. Specifically, TotalNEWS agreed not to directly or indirectly cause any Plaintiff’s Web site to appear on a user’s computer screen with any material supplied by or associated with TotalNEWS or any third party. Such material includes a URL, text, graphics, a pop-up window, audio, video or other content.

The Stipulation and Order of Settlement and Dismissal is comprehensive and attempts to even block TotalNEWS’ ability to indirectly revert to its previous practices. For instance, while TotalNEWS is not restricted from linking to any other Web site which does not include any proprietary content of any plaintiff, or owned or operated by a plaintiff, TotalNEWS may not link to a Web site that purposefully or overtly encourages users, once at the third-party’s site, to link to any plaintiff’s Web site in a manner forbidden to TotalNEWS.

TotalNEWS may continue to frame any of the approximately 1,400 other new sites. Some of the other sites linked to by TotalNEWS, including USA Today, have appreciated the extra traffic directed to their sites notwithstanding the use of frames by TotalNEWS.

Legal practitioners in the Internet law field have been watching the case, hoping it might clarify how some of the more established intellectual property rights might be applied to the Internet. Although the failure of this case to proceed to trial means that the resolution will not establish a legal precedent, it does provide guidance to other Web site operators on the type of activities that may be objectionable on the Web. A number of Internet commentators have speculated that this will have a chilling effect on the use of links generally and hyperlinks specifically.

Within days of the settlement, TotalNEWS was again flirting with the use of frame technology. The service introduced a personalization function, called Personal Edition, that permits users to map a news site to a button on the TotalNEWS view screen. Any such site, which could include a site owned by one of the plaintiffs, would then show up within TotalNEWS’s view window and continue to be framed with TotalNEWS advertising.

© 2005 Alan M. Gahtan. All Rights Reserved | Use is subject to these Legal Terms
Disclaimer: Not all materials may be applicable in your jurisdiction. Not intended to be a substitute for professional advice. No implied endorsement of, or affiliation with, any linked sites. Path to individual pages may change - please link to home page only. Linking Info