India: Legality Of Metag-ing, Linking & Framing

INTRODUCTION :

The Internet as we experience is witness a major change with the process of constant development. It has to be ascertained that the magnitude of development paves way for the force to attract malware and malicious activities. Like all client based industry the biggest asset for the internet industry is the user base. Depending on the amount of understanding the user posses, they fall prey to the traps laid down to various kinds of cyber crimes. Despite being in disguise of useful information, trails like meta-taging, linking and framing are the shadows which follow the user without reveling the identity, which upon refining comes out to be a different pretext altogether. The voluminous increases in types of crimes have further boosted the number of victims which fall prey to internet activities. The success-rate of meta-taging, linking and framing is higher from other crimes making them the most practiced events, which pave way to a lot of legal actions as well. Despite having been in existence and recognition for a long time now, a binding statute is yet to be made to govern the atrocities these activities are capable of, though there have been case laws which speak about the necessary course of actions, but they fail to lay down concrete measures. The most affected are the innocent companies which fall prey to the trap mechanism, primarily targeting their Intellectual Property mostly Trademark, Goodwill, and Copyright.

LINKING

"A "link" is a set of commands in Hypertext Markup Language (HTML) that when actuated by right-clicking a mouse directs your browser to another page. The new page could be in the website you're viewing or it could be a page in another website.

Three other well known type of links are: "intra-page, intra-system, and inter-system. Intra-page links connect different parts of the same document. For example, a long document may have a link at the end which takes the user back to the beginning. Intra-system links connect different documents on the same server. An intra-system link on a university's server might connect the home pages of two different departments. An intersystem link connects documents on different servers. Thus, a document concerning intellectual property law on a university's server might be connected to the home page of the Governments Patent Office"

Some relevant cases in order to provide on a general perspective for linking:

Shetland Times, Ltd. v. Jonathan Wills and Another,1 is considered the first "linking" case; "the issue presented in Shetland Times was whether the Shetland News's ("News") "deep link" to embedded pages of the Shetland Times's ("Times") web site, through the use of Times' web site's news headlines, was an act of copyright infringement under British law. The matter settled on the day of trial, shortly after the court had issued a preliminary injunction precluding the deep link. Although much discussed, this opinion has proved to be of little legal significance, in part because of the extremely low evidentiary standard applied by the court."

Nottinghamshire County Council v. Gwatkin,2 "the Nottingham shire County Council filed suit against three British journalists and a web site operator claiming that their Internet posting of a long suppressed government report critical of Nottingham's Social Services Department's investigation into allegations of Satanism and child abuse in the late 1980s infringed on the Council's copyright to the report."

One of the most well known cases it was Ticket master v. Microsoft - The first major case involving the practice of deep linking involved Microsoft's use of deep links from its "Sidewalk" web guides. These web guides spotlighted, among other things, upcoming events in a particular area, and would provide deep links to information on specific events on interior pages of the Ticket master web site. At that time, Ticket master had recently signed an agreement to provide event information and ticket-ordering links to a competing web guide service, City Search. Through this agreement, City Search was paying Ticketmaster for what Microsoft was taking for free. Tickemaster filed suit against Microsoft on April 28,1997, arguing that Microsoft's practices devalued Ticketmaster's site by bypassing its home page.

In addition most of copyright laws are clear about the fact of qualifying as infringer to anyone who breaks up or violates any of the right that the law has protected as the consequence of the authorship. Facing the facts, there is not a unique position about if all linking process involves a copyright infringement. In that sense is necessary to recall some cases in law as Sony Corp. of America v. Universal City Studios, Inc. Where the test was if the device had some legal use. In this sense the opinion of Edward A. Cavazos and Coe F. Miles in the case of Dilbert cartoons is "If the link in question is an auto-load link, however, it may be the case that the link looks and functions more like a "means to infringe" or that the linking party so substantially participates in the user's acts that the linking party can be deemed a participatory infringer.

FRAMING

Framing is a method of splitting one window into two or more screens. A web page can be inserted into a frame, and that portion of the screen will remain static as a user moves through other web pages. This method is called "framing," because it allows a webmaster to send an individual through numerous web pages while retaining the appearance and the utility of the frame inserted.

Most of the "Intellectual Property in Cyberspace" pages utilize frames. The pages in this technical primer have been set to open outside of the frames." Technically explained, a framing process works as follow: "The frames may contain either highlighted URL addresses of other Web pages that are intended to be "selected" by the framing page user or other pages within the same Web site.

LEGALITY OF FRAMING

Nevertheless the most accepted legal concept is that framing can cause consumer confusion and thereby violating trademarks laws and under particular laws can be unfair competition. The problem with a finding of copyright infringement of a literary work where such links are concerned is similar to that raised in respect of meta-tags because these hypertext links are likely to contain only relatively short phrases. The case of Shetland Times is unlikely to be helpful as it was only an interim decision and thus decided on a lower standard of proof. An example of such a pictorial link would be that found in Ticketmaster Corp v Microsoft Corp where the link from the defendant's web site to the plaintiff's site comprised the plaintiff's logo.98 In that case, the plaintiff sold and marketed tickets to various entertainment events through its web site 'http://www.ticketmaster.com' on the internet. The home page of the plaintiff displayed advertisements, products and services of other parties with which the plaintiff had contracts, thus providing it with an important source of revenue. The defendant set up a web site 'http://seattle.sidewalk.com' and initially entered into negotiations with the plaintiff to have hyperlinks from their Seattle Sidewalk site to the plaintiff's Ticketmaster site. When the negotiations failed, the defendant established the links anyway.

META-TAGGING

Every domain name can be translated to any IP address and there is no logical connection between an individually selected domain name and the IP address. The value of a simple and memorable domain name is incalculable to a business and has no doubt fuelled the aforementioned litigation over domain names. Very often, a customer who is unsure about a company's domain name will often guess that the domain name is also the company's name.

TRADE MARK INFRINGEMENT

The cause of action of choice at present however appears to be that of trade mark infringement. In Playboy Enterprises Inc v Calvin Designer Label, Legge J found that the plaintiff 'is likely to succeed on the merits in proving inter alia trademark infringement ... in Defendants' ... repeated use of the PLAYBOY trademark in machine readable code in Defendants' Internet Web pages, so that the PLAYBOY trademark is accessible to individuals or Internet search engines which attempt to access Plaintiff under Plaintiff's PLAYBOY registered trade mark.'

In Instituform Technologies Inc v National Envirotech Group LLC, the parties settled under terms that permanently enjoined the defendant from using the plaintiff's trademarks as meta-tags in their web site. Other cases followed, culminating in the Ninth Circuit Court of Appeal's decision in Brookfield Communications Inc v West Coast Entertainment Corp in which the Ninth Circuit issued a preliminary injunction against the defendant from, inter alia, using 'moviebuff.com' in meta-tags on its web site as such use was likely to infringe the plaintiff's trade mark 'MovieBuff'.

COPYRIGHT INFRINGEMENT

There are various intellectual property regimes which are potentially available to a plaintiff in a litigation involving meta-tags. Copyright is one such possibility which cannot be discounted in the light of the extremely unconvincing reasoning of the English Court of Appeal in the case of Exxon Corporation v Exxon Insurance Consultants International Ltd.

In that case, the plaintiff sought to restrain the defendant from infringing the plaintiffs' alleged copyright in their corporate name 'Exxon'. The English Court of Appeal dismissed the plaintiff's action on the basis that the word 'Exxon' was not a 'literary work' in which copyright could subsist. Stephenson LJ was of the view that 'a literary work [is] something which is intended to afford either information or instruction, or pleasure in the form of literary enjoyment'. The Court of Appeal found that the word 'Exxon' provided no information, instruction or pleasure and thus, copyright did not subsist in the word. Accordingly, the plaintiff's action failed. The result achieved by the courts is not doubted by the majority of commentators.

The preferable justification for denying copyright in such cases would be the maxim de minimis non curat lex; Unless this is so, the useful working rule that simplicity and brevity are not bars to copyright could easily be carried too far, creating monopolies over any two alphabets joined together. Such an interpretation of the phrase 'literary work' would be wholly alien to its natural meaning in ordinary parlance; hence the need for the maxim of de minimis non curat lex to restrict the ambit of 'literary work' within reasonable limits. If the maxim were embraced by the courts to rationalize the Exxon case, it is unlikely that any action in copyright infringement can be sustained in respect of disputes concerning meta-tags which are independently created by the web author.

CONCLUSION

The evolving times have created a dire need for a reform to address and handle all the challenging scenarios at hand. The biggest obstacle is to identify and try to mould the present conventional laws and try to address the problem under the umbrella of the same. The distinction at both national and international level regarding the absence of absolutely applicable laws is a striking factor.

It must be taken into account that apart from the threats possessed by the acts of framing, linking and meta-tagging; the biggest challenge lies in form to the impact which is given to the intellectual property when incidents relating to these occur. The intellectual property in either of the forms is irrevocably hurt and being very fragile upon being hurt once the damage caused is irreversible.

Footnotes

1 1997 F.S.R. (Ct. Sess. O.H.), 24 October 1996

2 (High Court of Justice, Chancery Division, June 3, 1997)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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