By Alan Gahtan - March 24, 1997
A number of news service providers with Web sites, including The Washington Post, LA Times, CNN and Reuters, have commenced a suit against TotalNEWS (http://www.totalnews.com) claiming the defendants are engaged in the Internet equivalent of pirating copyrighted material from a variety of famous news sources and repackaging those stories to advertisers as part of a competitive publication or program.
The suit alleges misappropriation, trade mark dilution, trade mark infringement, false representations and false advertising, unfair competition, deceptive acts and practices, copyright infringement and tortious interference. (The Washington Post Co. v. Total News Inc., 97 Civ. 1190 (SDNY, Feb. 20, 1997). This is the first case in North America involving litigation over Web links and the use of "frames" page technology, a feature found in many Web browsers.
TotalNEWS produces little or no content of their own. Instead, they create a composite page or screen that displays news and editorial content of other Web sites in a portion of the screen while displaying TotalNEWS’ logo, URL (their Web address or Universal Resource Locator) and advertising in other portions of this composite page.
TotalNEWS utilizes frames technology to create a directory of various news sites. Buttons to news providers such as USA Today, The Washington Post, CNN and Reuters, are placed in a frame or window on the left margin of the screen. Pressing the buttons located on this directory frame results in the contents from the selected Web site being displayed in a second frame to the right of the directory frame. This functionality can be analogized to a car radio with pre-selected radio station buttons.
There are significant disadvantages when visitors arrive by way of a frame on a composite page. When frames are used on a Web page, the URL at the top of the Web browser program continues to show the Web address of the composite page and not any individual page displayed in a frame.
Web users may not even realize that they have left the original site or are viewing material from another site. Secondly, since the URL for only the composite page is displayed by the browser, any attempt to bookmark (i.e., add an entry for that site in a directory contained in the browser program to facilitate a return visit) a Web site displayed in a frame results in a bookmark being added for the Web site containing the composite page instead.
The appearance of content from that the framed site on the same page as content from the site containing the composite page can lead some users to believe that the material displayed in a frame has been licensed to the original site hosting the composite page. Any copyright notices on the composite page may mislead viewers into thinking that they are applicable to the contents found at the framed site.
As well, trade marks contained on pages at the framed site will appear in conjunction with materials from the composite page and any ads that are displayed in other frames on the composite page. This may constitute "use" of the trade mark with other products or services leading to dilution of the mark.
The presentation of the framed sites through the TotalNEWS composite page results in a distortion of the presentation. The frame used by TotalNEWS to display its directory buttons takes up slightly more than 15% of the page width. This results in the framed site being presented through a narrower window that must be scrolled in order to view the entire content.
The display of the content from the framed sites through a window smaller than the assumed minimum screen size may also result in obscuring of advertising placed by the framed sites on their own pages being obscured. Advertisers may buy space based on the expectation that their advertisement will appear in a certain location and be free from the clutter of competing advertisements.
Another problem for the plaintiffs is that TotalNEWS utilizes rotating ads which change approximately one per minute. This results in new ads being continually loaded from the TotalNEWS site and a reduction in the available bandwidth. As a result, loading time for content from the plaintiffs’ sites is increased.
A number of Canadian law firms are using frames technology on their Web site and may want to consider the significance of this case and the issues it raises.
A copy of the Complaint may be found at http://www.ljx.com/internet/complain.html
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