Web Site Legal Issues
This section discusses the legal issues involved with the creation of a web site. Many of the topics discussed on this page are covered in greater detail elsewhere in BitLaw. The purpose of this page is to present in a single page the issues that must be addressed during the creation of a web site.
BitLaw's discussion of web site legal issues is divided into the following parts:
This page was written in part by Brad Bolin when he was intern working with Daniel A. Tysver.
Copyright concerns when creating a web site
A party is guilty of copyright infringement if they violate one of the five exclusive rights given to copyright owners under the Copyright Act. Included in those rights are the right to prevent others from reproducing (or copying) a work, publicly displaying a work, or distributing a work. As a result, web page authors should take care not to copy the work of others. An Internet service provider can also be found liable for copyright infringement even when they are not directly engaged in the copying of protected materials, as is explained in more detail in the BitLaw section on ISP liability.
Obtaining images for a web page. One of the chief attractions of the World Wide Web is
the ability to use graphics to convey information to users. A sophisticated and
subtle graphical presentation is the hallmark of some of the Web's most popular sites.
The following "rules of thumb" are meant to guide a web page creator when
selecting images for incorporation into a page.
- Creating original images from drawing and painting programs: The best way to obtain images is to create them in a drawing or other image creation program. In doing so, however, it is best to start from scratch rather than from someone else's creation. Even if an image is significantly altered, the new image may infringe upon the copyright in the first image by being a "derivative work."
- Taking images from third-parties: The simple rule is, "Don't steal someone else's images." The moment an original image (or string of text) is fixed on a hard drive for the first time, it is protected by copyright. Any unauthorized copying of a protected image is an infringement of the creator's copyright, unless the use falls within one of the very limited exceptions to the copyright law, such as "fair use." In most cases, it is unlikely that the incorporation of an image into a commercial web-site would be considered a fair use.
- Licensed images from the Internet: Some images, such as Microsoft's "Internet Explorer" logo, may be copied, but only if the would-be copier accepts the terms of a license defining the permissible uses of the image. Often such licenses provide that the copier cannot alter the appearance of the image in any way, and may use the image as a link only to certain designated sites. (An example of a logo license agreement can be found on MSNBC's web-site.)
- Clip-art Libraries Provided with Software: Other sources of licensed images include clip-art files, such as those provided with Claris Home Page, Microsoft Front Page, and Adobe PageMill software. Incorporating clip-art from these libraries into a page does not violate copyright law, as these images are licensed to the purchaser of the software for this purpose. To avoid liability, however, a webmaster must be careful to obey the terms of all applicable license agreements. For instance, the license may not allow a user to alter the images in any significant way.
- Free Images Off the Internet: Some web sites provide images that are for use by others. These images may be used in a web page, as long as the terms proposed by the image creator are followed. Typically, these sites only require that some type of credit is given to the author, including a link back to the author's site. However, there remains the possibility that the images were misappropriated at some point and were not original creations of the alleged author. In these cases, use of the images may infringe the copyright rights of the original author.
- Developing text for a web page. The guidelines for text development are similar to those for obtaining images. Truly original text, developed by the creator of the web-site, may be used without copyright concerns. As with images, appropriating text from third-parties without permission is illegal, unless there is some substantial "fair use" justification for the taking. Use of third-party text pursuant to a license agreement should follow the terms of the license agreement. As for public domain works, one should never assume a work is in the "public domain" without independent investigation.
Domain name concerns
The selection and protection of a domain name may be the most important detail in the creation of a web site. Domain names function as the address for a web site, and disputes over domain names have become more common and more heated as the popularity of the Internet grows.
- Selecting a Domain Name: Domain names have a first and second level. In the bitlaw.com domain name, the ".com" portion is considered the first or top level domain name, and "bitlaw" is considered a second level domain name. The most common top level domain (.COM, .ORG, .NET, .GOV, .EDU) names are administered by InterNIC, although other top level domains are available and still more will be available soon. To obtain a domain name using one of these top level domain names, a WhoIs search should be done to make sure the name is not taken. In addition, it may be wise to perform a trademark search to verify that the chosen domain name is not infringing on another party's trademark.
- Reclaiming a Domain Name Registered by Another: Occasionally, upon searching for a domain name, a party may discover that someone else has already taken their corporate name or trademark as a domain name. In most cases, there is little that can be done because the other party has equal right to use that name. In some circumstances, however, it is possible to contest a registered domain name based upon superior rights to that name. Such a contest can be made through the courts or through InterNIC's domain name dispute policy.
- Obtaining a Domain Name: If the name is available, a registration can be filed with InterNIC using their on-line registration form.
- Protecting a Domain Name: In order to better protect a domain name and to avoid losing a domain name under the InterNIC domain name dispute policy, a domain name owner should obtain a trademark registration on their domain name. In order to obtain immediate protection, a registration can be obtained through Tunisia. However, often the expense of a Tunisian registration is not justified.
- Obtaining Multiple Domain Names under Different Top Level Domains: Because of the new top level domain names that are currently proposed, it may be wise for the owner of a strong trademark to obtain domain name registrations under multiple top-level domain names. For example, the BitLaw web site might be found under "bitlaw.com", "bitlaw.firm", "bitlaw.web", and "bitlaw.net". Multiple registrations may require the overhead of maintaining a web site under each domain, but will prevent competitors from obtaining the sites.
A trademark is a word, image, slogan, or other device designed to identify the goods or services of a particular party. Trademark infringement occurs when one party utilizes the mark of another in such a way as to create a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products or services are the same as that of the trademark owner, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by trademark owner. Since most web sites will contain discussions of products or services, web site developers should be aware of the potential trademark issues.
- Discussing the trademarks of others: There is nothing inherently wrong with the identification of other party's products on a web page by using their trademarks. Nonetheless, some parties have made inappropriate claims of trademark infringement every time they see one of their marks on another party's page. Sometimes, however, a web site does violate the trademarks of another. Web page designers should avoid trademark usage that might cause confusion among viewers as to the source or sponsorship of the web page. Such use might well constitute trademark infringement.
- Linking to another page through that party's logo or trademark: It is common to find a link to another web page made through a company's name, trademark, or logo. In most cases, this type of link will not cause trademark concerns unless the use causes the type of confusion discussed above. However, the use of another party's logo without their permission may be more likely to raise the type of confusion that creates trademark infringement, since a graphical logo arguably creates a stronger impression of affiliation than mere text.
- Selecting a trademark: To select a trademark, one should consider the relative strength of the mark. Certain marks are stronger than others. Made up words, such as Kodak or Xerox make the strongest marks. The next strongest marks are those words that have no relationship with the products or services on which they are used, such as APPLE for computers. Marks that are descriptive in nature, such as CLEARSCREEN for computer monitors, may be so weak that they will not function as a trademark until they have been heavily used. After picking a mark, a trademark search should be performed to make sure that no one else has rights to the mark.
- Protecting a trademark: Once a mark has been selecting, the best way to protect a mark (in the United States) is through a federal trademark registration. If the goods or services sold under the mark will be sold internationally, trademark registrations in other countries should also be considered.
The term defamation refers to a false statement made about someone or some organization that is damaging to their reputation. For a statement to be defamatory, the statement must be published to a third party, and the person publishing the statement must have known or should have known that the statement was false. The law of defamation is complex, as it has been determined by numerous court decisions rather than one national statute. In addition, a claim of defamation is subject to a variety of defenses, such as the First Amendment and (of course) the defense that the statement was true. Because of the complexity of defamation law, a full explanation of this area will not be set forth here, and is saved for others to provide.
While the Internet provides a new context in which a defaming statement can be made and published, there is little new law relating to Internet defamation other than liability for service providers. Nonetheless, web page developers must be careful to avoid defaming someone in their pages. If a statement is being made that may damage the reputation of a person or organization, care should be taken to make sure that the statement is not defaming.
Linking and framing concerns:
Links between pages are the raison d'etre for the world wide web. Without widespread linking, the web as we know it would not exist. Nevertheless, there are questions about the legality of such connections. For those interested in more information on any of the subjects below, Bitlaw also contains an extended discussion of linking liability.
- Derivative Work Created by Linking-In Images Found on Other Sites: When the image from another web site is incorporated into one's own page by means of an unauthorized IMG link, there is no direct copying by the creator of the link. Nonetheless, when the visiting browser retrieves the image from the other web site and combines it with the text on the current page, the creator of the web site may be guilty of contributory copyright infringement for creating a derivative work. Consequently, one should not include links to images found on another party's web site without first getting permission.
- Passing Off: One can also utilize a link to pass off another's work as one's own. For instance, one could tell the reader to click here to see some of Brad Bolin's best original comics. The link leads to a Doonesbury image which is falsely claimed to be original to Brad Bolin. Consequently, the HREF link also is a reverse passing off. Reverse passing off by using a link to pass-off another's work as one's own most likely violates state law governing competitive business practices.
- Defamation: In addition to the type of direct defamation explained above, it should be noted that a link to another's page or image could be defamatory, and hence subject someone to legal liability. An example defamatory link would be: "Some idiot killed my cat, stole my invention, and threatened to destroy the Internet." The statement itself does not identify the party. The link itself (assuming it actually linked to someone) provides the context that turns the statement into defamation.
- Trademark Infringement: As explained above, trademark infringement occurs when one party utilizes the mark of another in such a way as to create a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products or services are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by trademark owner. As a result, any link that falsely leads the end user to conclude that the web page author is affiliated, approved, or sponsored by the trademark owner could lead to a claim of trademark infringement.
- Problems with Frames: Frames are used to subdivide web pages into multiple parts. In most cases, frames are used only to show multiple pages of content from the same site at the same time. For example, frames could be used to divide a browser into two parts, with one part containing an index for the web site and the second containing content pages. While this type of use is perfectly legal, problems can arise if a frame is used to show pages from two web sites at the same time. The use of frames in this way can mislead the viewer of a site as to the creator of its content, possibly raising issues of copyright infringement, passing off, defamation, and trademark infringement, just like the linking situations described above. The party that developed the Totalnews web site found this out by using frames to show other news organizations sites at the same time as showing their index and advertisements. The other web sites were not amused, and filed suit.