Last major update 10-16-03
Computer Law 484
Professor Richard H. Stern
Is Framing Copyright Infringement?
The judge finds framing to be confusing. If it confuses you, too, click on his image to join him in studying a tutorial on framing by Joe Burns - So you want some frames, huh?.
The framing controversy first came to a head in February 1997, when the "Gang of 6" (led by the Washington Post) sued Total News ("TN"). The suit was precedentially inconclusive, because TN felt unable to fund an expensive lawsuit to vindicate a principle about what legal regime ought to govern copyright and the Internet. Accordingly, TN settled, by agreeing to the Gang of 6's terms. However, the lawsuit stimulated considerable commentary, links to some of which may be found on this page.
The present format of the TN Web page is somewhat cleaned up relative to what it was in 1997, and those that it now frames apparently consent to being framed. Accordingly, you do not get a good idea of what antagonized the Gang of 6 to the point of suing TN. To remedy the (pedagogically) unfortunate gentrification of TN, a link is provided at the end of this Web page of an example of a more villainous case of framing--the scrofulous Web page of the scabrous and morally corrupt Professor Nefarious. In addition, a link is provided to a demonstration of how this Web page could be distorted esthetically by suitably hideous framing (first line of blue menu box — needs Java to work), together with an explanation and visual demonstration of how one can adopt a technical fix to foil framing (second and third lines of blue menu box — needs Java to work).
Here are some links to commentary on this case and the issue of whether unauthorized framing is copyright infringement.
- ZD Net story, "Setting cyberspace's boundaries - on filing of WP v. TN
John Dvorak PC Mag story, "Lawsuit threatens future of the Web" on filing of WP v. TN. Says Gang of 6 is out to kill the Web to save tree killers' income stream.
Martha Stone ZD Net story on expense to defendant of litigation in WP v. TN, consequent chilling effect (Part I, has link to Part II).
ZD Net story on out-of-court settlement of WP v. TN
Martha Stone ZD Net story on settlement, quoting statements of counsel on legality of linking and framing.
Martha Stone ZD Net story on post-settlement dispute over "accidental" framing by TN
Martha Stone ZD Net story, "News sites go after framers" on latest threats to file framing and linking suits
Here is a pair of actual district court decisions (of sorts) in a framing case, along with a memorandum unpublished affirmance of the first decision in the Ninth Circuit: Futuredontics v. AAI. For a while, this was the only framing case with a reported decision in the U.S., even unofficially (U.S.P.Q.2d).
This case was recently overshadowed by the Ninth Circuit's decision in Arriba Soft, which purported to address framing, but actually considered a case of inline linking (it was deep linking, as well). The court condemned the practice as an unauthorized public display.
Arriba then filed a petition for rehearing, pointing out that the CA9 had confused framing with opening a new window on hyperlinking,* because of the court's technological ineptitude. Amici curiae joined in with Arriba as the CA9 ordered more briefing.
After playing the puzzled judge for 16 months, the CA9 punted by withdrawing the whole section of the opinion that dealt with the issue and remanding the case to the trial court.
* There are many ways to cause a new window to open upon the user's clicking on a link, without closing the old window so that it would have to be reloaded on "BACK". Note, Google's options / preferences give you a choice on whether, on selecting a searched link, to open a new window or instead to change windows.
Links to 2004 edition of course casebook,
subchapters on linking and framing.
Web Page of Professor Nefarious
For a particularly shocking example of framing, which raises numerous copyright law questions, click on the image at left. It provides a link to the home page of that inveterate disregarder of other persons' intellectual property rights (and rascal), Professor Nefarious. Fortunately his Web page is still under construction and perhaps it may be suppressed by appropriate legal action before it becomes fully operational. Consider what theories of copyright law might be invoked for this purpose. Consider also what steps one might take to improve the posture of any copyright infringement case that might follow. For example, consider the notice of no implied license mentioned at the end of Part II of the page on linking.
Demonstrative Material on Framing and Derivative Works
Click on computer image to return to Computer Law Course Copyright Bulletin Board Page
Sensible persons will appreciate that the use of trademarks on this page is not a trademark use of the marks nor is it intended to suggest association or sponsorship on the part of the trademark owners. See, for example, Judge Hand's opinion in American-Marietta Co. v. Krigsman, 275 F.2d 287 (2d Cir. 1960).
Click on email address link — firstname.lastname@example.org — for an email “mailto” for Professor Stern. And here’s an alternate one — email@example.com — at IEEE Computer Society.