Law in Cyberspace: Not me Guv, I was framed
Following the recent Shetland News case (which is going on appeal), concerning links and copyright, I can now report that there has been a major development in the US which could be the most important case to date in the ongoing development of law in and commercial exploitation of cyberspace.
Totalnews set up a site (http://www.totalnews.com) which comprises nothing more than a number of links to other news providers. Through the use of frame technology when a link is used, the logo, menu and banners of Totalnews remain on the screen and the content of the site linked to, appears in a frame. In the good old days of the Internet about two years ago, using a link meant that the user was totally transferred to the linked site. The ability to call in information and content from other sites retaining their identity has enabled web site owner to sell advertising while benefiting from the creativity of others. It was a matter of time before someone took action.
In the case of the Totalnews site they have taken on an impressive list of Plaintiffs, with deep pockets ensuring that unless Totalnews back down, this matter will proceed through the legal maze. The list of those objecting include: The Washington Post, Time Inc., CNN, the LA Times, Dow Jones, and Reuters.
The case has been brought in the DISTRICT COURT OF NEW YORK. The first issue that will have to be dealt with is a jurisdictional one, as the defendants are based in Arizona. The complaint states that "This action arises out of blatant acts of misappropriation, trademark dilution and infringement, wilful copyright violations, and other related tortious acts all committed by the Defendants in connection with their operation of a parasitic site known as "totalnews.com"
The impression I get from the above is that the Plaintiffs feel that some wrong has been committed by the Defendants, but they cannot precisely define what it is. What they are doing is throwing in every possible intellectual property area that might be involved and hope that the court will be willing to take a stand in making new law to deal with the challenge posed by cyberspace. In effect if Totalnews produced a weekly newspaper containing items copied from other papers, they would undoubtedly be liable under most of the counts brought by the Plaintiffs. The question is how will the court deal with frames and links in this context?
The complaint provides a nice history of the evolution of the Internet, including the emerging ability to sell advertising. (they claim that in the first three quarters of 1996, $150 million was spent on advertising on the Internet.) They claim the Defendants are "misappropriating" trade marks and copyright material, in order to sell advertising in competition with the Plaintiffs.
They say, putting it simply that the Defendants are pirating copyrighted material and that as this is not tolerated in the world of print and broadcast, it is equally unlawful in "cyberspace".
They allege that the Defendants are doing business in the New York jurisdiction, they have users there, they have republished the Plaintiffs' content originating from servers in the district, they promote the service to users in the district and they have gained revenue from interstate advertisers wishing to reach users in the district.
After describing the process involved in using the site and the consequence of using the frame technology, they quote from the Totalnews site "TotalNEWS provides a tremendous opportunity for advertisement on the Web. Thanks to our unique "timed delivery" concept, TotalNEWS Inc, can guarantee a rotation time of 60 seconds for each ad, This means that a user of TotalNEWS will see a new ad on his screen every minute, while browsing for information in all the major news sites around the world. (emphasis added by the Plaintiffs)
The Plaintiffs then make a number of allegations against the Defendants.
Count 1. Misappropriation
The Defendants have misappropriated news and information created by the Plaintiffs and that the Defendants are getting a free ride by linking to this information. The difficulty I see is that it is the user that is using the link provided and not the Totalnews site. The information is being pulled by the user, and is no more than a user can do by going directly to the relevant site, which the Plaintiffs obviously want users to do. They assert that the commercial value of the news is sold to others for profit which is unfair competition under the law of New York.
Count 2. Federal Trademark Dilution
The Plaintiffs assert that their trademarks are amongst the most famous in commerce in the US. They assert that the Defendants dilute and detract from the distinctiveness of the Plaintiffs' famous marks. It is not clear whether they are referring to the links as trade mark dilution or the consequence of the link being used and the trade marks then appearing to the user in the frame.
Count 3. Trademark Infringement
This is similar to Count 2, but they assert that the Defendants are using the Plaintiffs' marks in connection with advertising. They assert that the use of the links will cause confusion to the user as to the source of the content and advertising. My personal perspective as a user of the site is that it is quite clear that the links are to the sites specified and that when I click on the "CNN" button, I expect to be taken to the CNN site. It may be that the court will be willing to rule that using a link together with a frame that incorporates a trademark amounts to an infringement. This presupposes that importing the Plaintiffs' pages into the Defendant's site amounts to use of the trade mark in the course of trade. If they do it will have incredible repercussions for all users of the World Wide Web. Links are the glue and the whole reason for the existence of the WWW to a great extent.
Count 4. False Designation of Origin
They assert that use of the Plaintiffs marks have caused consumers to believe that there is an affiliation between the Defendants and the Plaintiffs, or that the site is sponsored. I assume that this point could be dealt with by way of a prominent disclaimer on the Totalnews site.
Count 5. Copyright Infringement
They assert that they own copyright material and then list some dozen web site addresses (URLs). They also assert that the Plaintiffs registered the contents of their sites on February 14 1997. But in any event they claim the infringement continues every day, 24 hours of the day. The Plaintiffs warned the Defendants that they did not want their material presented on the Totalnews site. An infringement occurs where a copy of material is made without the permission of the owner. The problem with this Count may be that the user copies the content after selecting a link and not the owners of the Totalnews site. The Defendants are facilitating the copying by providing the link which may amount to secondary infringement. The court would have to find that making a link to another site amounts to making a copy of material on that site. This would stretch the rules of copyright to breaking point.
Count 6. Tortious Interference
They assert that the site was intentionally designed to display third-party advertising simultaneously, and in competition , with the material placed by the Plaintiffs on their own sites. By obscuring advertising placed by the Plaintiffs, it makes it difficult for them to perform the contracts with their advertisers. It could be argued that the totalnews site creates more traffic to the linked sites which still display the adverts albeit in the frame on the Totalnews site.
The Plaintiffs are seeking an injunction to stop them doing what they are currently doing. In addition they want an account of profits and damages.
This case shows how difficult it is proving to be, to apply existing laws to the activities taking place in cyberspace. The court in this case is faced with making a decision which could fundamentally alter the nature and structure of the entire WWW.
© This article is copyright Sprecher Grier Halberstam LLP 2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. the contents are intended for generic information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.