Legal Implications of Interconnectivity

William Fisher

July 4, 2002

© 2002. All rights reserved

Effects of Aggregations and InterconnectionsBenefitsSpeed and convenienceExpand users’ access

to: Information Goods Comparative prices

Creativity/Free Speech

HarmsParasitismConsumer confusionAesthetic injuriesOverload serversErosion of incentives

to construct websites

Deep Linking

Framing

Links to illegal material

Metatags

Search Engines

RobotsI II VIIII IV V

Deep Linking

Homepage

advertising

Webpage

Webpage

Webpage

Competitive Site

advertising

Visitor

?

Deep Linking – Selected Case LawShetland News (Scotland 1996)

Enjoin deep linking by rival news organizationTicketmaster v. Microsoft (1991; settled 1999)

No deep links from Seattlesidewalk.com to TMBernstein (C.D. Cal. 1998)

No copyright offense for second-tier link to infringing photoTicketmaster v. Tickets.com (C.D. Cal. 2000, aff’d 2001)

Copying purely factual information privileged Temporary reproduction of event pages excused as “fair use” No violation of misappropriation doctrine in absence of commercial

injury Minimal “trespass to chattels” No contract claim in absence of “click through”

Ticketmaster II

Ticketmaster

advertising

Event1Pagetickets

Event2Pagetickets

Event3Pagetickets

Tickets.com

advertising

Visitor

Event1page

Event2page

Event4Pagetickets

?K

Deep Linking – Selected Case LawShetland News (Scotland 1996)

Enjoin deep linking by rival news organizationTicketmaster v. Microsoft (1991; settled 1999)

No deep links from Seattlesidewalk.com to TMBernstein (C.D. Cal. 1998)

No copyright offense for second-tier link to infringing photoTicketmaster v. Tickets.com (C.D. Cal. 2000, aff’d 2001)

Framing – Selected Case LawPotential claims

Trademark infringement – consumer confusion Trademark dilution Copyright infringement – derivative works

Very few framing disputes reach trial The large majority of “framers” retreat when threatened

with suit E.g., Total News (SDNY 1997)

Exception: Futuredontics (CA9 1998) Plaintiff failed to allege injury

Lesson of Ditto.com?

Links to Illegal Material

Site #1

advertising

Webpage

Webpage

IllegalMaterial

Site #2

advertising

Visitor

Webpage

Webpage

Plaintiff

?

Links to Illegal Material– Selected Case Law Intellectual Reserve (D. Utah 1999)

Contributory copyright infringement by encouraging visitors to make RAM copies

Reimerdes (CA2, 11/28/2001) Providing a link to a website that, in turn, enables

visitors to download copies of encryption-breaking software violates DMCA 1201(a)(2) = “trafficking” in circumvention technology

None of the DMCA safe harbors are applicable No violation of First Amendment

• “content neutral”; advances “substantial government interest”

Metatags – Selected Case Law

Niton (D. Ma. 1998); Brookfield (CA9, 174 F.3d 1064); most of the Playboy cases Actual confusion or “Initial Interest” confusion

Playboy v. Welles (SDCal 1998); Bihari (SDNY, 9/2000) No likelihood of consumer confusion Use of TM excused by “fair use” doctrine

Internet as a web

Webpage

Webpage

Webpage

User

Webpage

Webpage

Webpage

Search Engine

?Inlinelink

Search Engines –Case Law

Kelly (CDCal 1999) Making thumbnail copies violates §106 But is excused by the fair use doctrine

Purpose is “commercial” but “transformative”

Artistic works are strongly protected against copying

Entire image is copied

No demonstration of economic harm

Weak point

Search Engines –Case LawKelly (CA9 2001)In-line links constitute “public display”

Projection of an image Through simultaneous transmission to many

recipientsNo fair-use defense

Not transformativeArtistic works are strongly protected against

copyingEntire image is copiedNo demonstration of economic harm

Internet as a web

Webpage

Webpage

Webpage

User

Webpage

Webpage

Webpage

Ebay3,000,000 items5,000,000 items

Bidder’sEdge

100,000Per day

Robots – Case LawEbay (NDCal, May 2000)

Unauthorized robotic searches constitute an intentional interference with a website’s possessory interest in its computer system

If others are permitted to engage in this activity, the result could be a “substantial impairment of the condition or value” of the systemPreliminary Injunction to halt a “trespass to chattels”

Feb. 2001: Bidder’s Edge foldsJune 2001: Lawsuit settled

Trespass TheoryRight to exclude unwanted entrants to real

propertyIllustrative Exceptions:

Private necessity (e.g., deviation from a public way) Public necessity Overflights Anti-discrimination (places of public

accommodation) – Title II Access to employees (State v. Shack) Protests (Pruneyard)

Cf. Sections 106, 107 of Copyright Act

Public-Interest Considerations in Ebay

Consumers’ access to information concerning rival sellers decreases prices and increases quality