Framing is regarded as a subset of linking, referring to the process by which a website’s page can be subdivided, so that content can be displayed from a number of different sites within discrete windows. Each frame which appears on the page may display a different webpage. This technique is typically employed to present data from a variety of sources which appear in independent regions of a web page.
The case of Perfect 10 v Google Inc raised the issue of the legality of framing of infringing sites by Google. Perfect 10 alleged that Google’s framing of third party websites containing the corresponding full sized versions of their copyrighted thumbnail images amounted to copyright infringement. A Californian Court had to determine whether the search engine could be held liable for copyright infringement by displaying thumbnail images on their ‘image search’ function (Google Image Search). Furthermore, the Court had to assess whether by inline linking to third party websites hosting and serving infringing full sized images constituted copyright infringement.
Inline linking is a form of hyperlinking which allows a host website to incorporate content, whether images and or other material from other different computers into a single window in the host website. The HTML in the inline link directs a browser to retrieve a linked-to image from a third party website and display it on the user’s screen, without the user ever leaving the host website. No images are actually stored on the web page. The HTML instructions on the page merely provide a website address which points at a location where the images are stored.
Perfect 10 is an adult entertainment publisher which markets and sells copyrighted images of models via an Internet subscription service. The company also licenses the right to sell and distribute smaller sized versions of those images to mobile phone users to another company. Unauthorised infringing images were published on the internet, scanned, indexed and stored on Google’s servers. The images are made available as thumbnail images so when a user clicked on the thumbnail their browser facilitates access to the third party webpage and inline links to the full sized version of the image resident on the website publisher’s computer.
As a result Perfect 10’s images were appearing on users’ computers in the lower portion of the computer screen and framed by information from Google’s webpage. The outcome of the case centred on Googles’ indexing of thumbnail images and their framing of third-party web sites containing the full sized versions of Perfect 10’s copyrighted content. Perfect 10 argued that the inline linking amounted to both direct/primary copyright infringement and secondary copyright infringement.
Perfect 10 argued that as the copyright owner of the images they held the exclusive right to display the images and that Google was breaching their rights. Google responded that they were just serving content and that the linked site was merely displaying the images. The Court agreed with Google in finding they were only involved in serving the content rather than displaying it.
Perfect 10 also argued that Google were also breaching their right to distribute the images. The Court held merely providing inline links didn’t infringe Perfect 10s’ exclusive distribution rights. The Court stated that ‘distribution’ involves a dissemination of files in the sense that they are transferred from one computer to another. Google were not involved in any transfer of the files in question, rather it was the third party websites.
The Court accepted that permitting access to these images only involved supplying the hyperlink to the source website the image resided upon. The case was greeted as a victory by image search companies such as Pixsy, Bing, Yahoo Search and Picsearch, companies involved in scouring the web and returning images.
Kelly v Arriba Soft Corp also involved the use of a visual search engine which functioned as a catalogue, providing improved access to visual images on the internet. The search engine crawled the web to produce thumbnails and then linked them to the original photographs. The Plaintiff photographer sued the search engine alleging copyright infringement for using his images. The Court found that both the creation of the thumbnails and the inline linking were justified under the doctrine of fair use.
The Court held that Arriba’s use of the photographs served a different function than the copyrighted work, namely to enhance access to information on the internet rather than serve as a form of artistic expression. As such, it was characterised as a ‘transformative use’. The program used only generated small low resolution thumbnails of the images, and then deleted the full sized originals from the server, so that clicking on the images would only yield a low resolution enlargement.
The Court reasoned that whilst a user could copy them, they couldn’t increase the resolution of the thumbnail and any enlargement would have resulted in a loss of clarity. The Court resiled from ruling on the issue of full sized renditions of visual works, which are more likely to constitute market destructive appropriations of the copyright owner’s work. Arriba’s use of the images could have been regarded as commercial insofar as they did sell some advertising on their website.
As the images weren’t copied onto Arriba’s servers, the Court found that the Plaintiff’s exclusive right to reproduce the work was not violated. In Perfect 10 the Court held that thumbnail images could amount to fair use provided the defendant didn’t receive any financial or commercial benefit from the infringing use.
The practice of framing is more controversial than deeplinking and the case law suggests that framing probably isn’t likely to amount to copyright violation. However it may cause users to believe they are viewing a single web page, and if a practice leads to consumer confusion it could violate other laws, leading to trademark infringement, passing off or misleading and deceptive conduct.
Websites may be able to avoid claims of direct infringement by providing access to content on other websites, however the Perfect 10 case on appeal indicates that there are other potential grounds of exposure to liability such as contributory copyright infringement. Just because there is no liability for direct copyright infringement this does not rule out liability on this basis. In fact Google was found on appeal to have been engaged in contributory infringement and their fair use defence was rejected. Depending on your business model, you may therefore be exposing yourself to secondary copyright infringement. Owners of content, whether images or text, may be able to protect themselves from such use of their images by opting out of search engine indexing, or by using watermarks and trade marks and technological protection measures preventing the re-use of their images.
There is a real risk of being held liable for contributory infringement as Google was held to have lead users to infringing content which they were aware was available. The Court held that Google could have taken simple measures to prevent infringement, but didn’t specify what these were or address the feasibility of policing and pre-screening billions of images.
The Perfect 10 case cannot be treated as conclusive in establishing a conclusive ruling on the legality of framing in terms of copyright infringement.
There have been previous cases dealing with framing which demonstrate that the law is not totally settled in respect of the practice. There are other ways framing could amount to a copyright violation. For example framing technologies can result in the creation of derivative works, particularly where they alter or distort an original work, as was argued in the Washington Post v Total News complaint.
In this case, the Defendant, an online news aggregator, was sued for framing the Plaintiff and other news’ providers’ websites and content. The defendant Totalnews.com didn’t create any independent content on it’s site. It merely re-published content from other websites, using frames within which links to other news websites and their contents were included. This was done with a view to selling advertising by attracting traffic to their site.
The case raised issues of wilful copyright infringement, in addition to misappropriation and other torts. The case settled before the trial of the matter, with the Plaintiffs permitting TotalNews.com to link to their sites via hyperlinks rather than framing. The Plaintiffs were troubled by the effect the framing had insofar as it often distorted or modified their content or it’s appearance, in addition to their logos. Their content appeared much smaller and was partially obscured, in some cases even obliterated.
The defendant was also using their URL in their webpage’s browser even though the content they were displaying was content emanated from another site. When content is framed the user viewing it may not be aware of the origin of the content. This is obviously far more likely where it is surrounded by advertising and images which pertain to the site engaging in framing, especially when they are still using their own URL in the browser.
The success or failure of the Plaintiffs’ copyright infringement action hinged on their ownership of the copyright material and the websites which they had re-published without the permission or consent of it’s owner. Existing case law on deeplinking suggests that deeplinking is not a breach of copyright law.
By analogy an author can’t prevent a reader from reading the end of a book first, and a website owner can’t dictate the order a user accesses their website. The legality of the practice is yet to be conclusively settled. (see FutureDontics v Applied Anagramics and National Football League v. TVRadioNow Corp).
There is a much more persuasive case for arguing that framing is more likely to amount to copyright infringement where it interferes with the copyright owner’s right to make adaptations or derivative works.
If a framed use of a copyrighted work was found to be a derivative work, the person engaged in the framing may still have a defence of fair use available to them, as Google argued in the Perfect 10 case. It is also important to remember that framing may also give rise to breaches of a copyright owner’s moral rights.
Copyright infringement aside, there remain legitimate concerns that framing may violate other laws, resulting in accusations of trademark infringement, misappropriation, unfair competition, breach of privacy, defamation, fraud and what are known as rights of publicity in the US.
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