As the Internet continues to evolve rapidly the way in which some of its fundamental tools are used has come under question. Long-held assumptions about links between websites are one example.
Traditionally, website owners did not object if another site contained a hyperlink that pointed to it. In fact, the linked site was usually quite flattered, as it acknowledged that the linked site was worth a visit. Even when advertising became prevalent, site owners with advertising were delighted to be linked. The extra visitors cranked up the hit counter, and increased the site's bargaining power in selling advertising.
Typically, most of the advertising on a site is at the portal, the top-level or "home" page. As the visitor clicks down more deeply into the site, the advertising content diminishes and frequently disappears altogether.
Site owners are now becoming sensitive to the implications that this has for them and for their advertisers. Someone following a hyperlink to a deeply embedded page in a site will not pass through the main portal. They will miss the advertising exposure and may not register on the hit counter.
Recently some sites have sought legal redress from the linking site. In a high-profile case, Ticketmaster sued Microsoft for linking deep into its site rather than through the site portal, claiming diversion of potential revenue. Ticketmaster had an agreement to give MasterCard prominence at the portal, and it said that the deep link prevented it from fulfilling its obligations.
This particular suit ended harmoniously when Microsoft agreed to sell the allegedly offending part of its operation - Sidewalk - for a 9 per cent share in its rival, a deal that appeared as a gain of $156 million in Microsoft's September 1999 accounts.
There are bound to be many more cases. Some litigants may claim that the linking is an infringement of either copyright or trademark laws. Certainly if the linking site uses a clickable logo of the linked site, net users are more likely to think that some form of association exists between the linking and linked sites.
An even bigger problem exists with the practice of framing. In sites that use frames (effectively separate web pages that appear in one browser window) the linked site can appears in a frame that contains content from the linking site. The web address shown at the top of the browser window is still that of the linking site. Many users will be convinced that the material in the frame is part of the linking site when it is not.
This was the contention of the Washington Post and a number of other plaintiffs in a suit against TotalNews. The latter had created a hub site that pointed to all the big names in the US media, including CNN and USA Today. When a user followed a link, the destination news material appeared encased in the TotalNews frame, complete with all the TotalNews advertisements.
The plaintiffs claimed that TotalNews was passing off the encased material as its own, and at the same time was creating an unwanted association between the linked site client and the TotalNews advertisers in the frame. One can imagine the potential damage to the Washington Post's brand cachet if its material appeared in a frame with advertising of a sort that the newspaper would refuse to carry if it were offered it directly.
Unfortunately from the point of view of clarifying the law, the case was settled out of court. TotalNews agreed to pay a licensing fee and to remove the framing from the linked material. So, although the major issues were not resolved in court, the action of TotalNews in removing framing and paying to link would suggest that its legal team felt it was on its way to defeat in the case.