Times’ headlines from a single Times newspaper as a basis for News’ links to the Times website
might also constitute an infringement under United States copyright law. If Times’ suit had been
brought in the United States, News would no doubt argue that its use of the headlines was a fair
use as part of news reporting.^3040 Times would no doubt argue in response that the commercial
harm to its advertising revenues from its headlines on its own front page should defeat News’
fair use argument. Although it is unclear how such a case would be decided under United States
fair use law, the case is a good illustration of the copyright issues that may arise out of the act of
linking.
- The Total News Case
In February of 1997, a number of news service providers (The Washington Post, Cable
News Network, Times Mirror, Dow Jones and Reuters New Media) commenced a suit against
Total News, Inc. (“Total News”) and other defendants who were either providing website design
and programming services to Total News or were principals of Total News. The case was the
first to challenge framing as a copyright infringement.
The Total News website was a “para-site,” designed to make over 1200 news sources
from all over the world available at a single site. The Total News home page frame consisted of
the totalnews.com URL at the top, a column of rectangular icons with the trademarked names of
several of the plaintiffs running down the left margin, and advertising sold by the defendants at
the bottom. At the right center portion of the screen was a news window. When the user first
logged onto the Total News website, this window was occupied by a “compass” style array of
hyperlinks to several of the plaintiffs’ websites. Clicking on the links would cause material from
the plaintiffs’ websites to be displayed in the news window, but still within the Total News
“frame.” Thus, for example, if a user clicked on the “Washington Post” link, the news window
within the Total News frame would fill with an electronic version of The Washington Post
newspaper linked in from The Washington Post’s own website. However, the totalnews.com
URL would remain in place at the top of the frame and advertising sold by Total News would
remain in place at the bottom of the frame.
Because the news window of the Total News frame was smaller than full screen in
size,^3041 the effect of the framing by the defendants was to display only a portion of the original
screens of material from the linked sites at any given time, and the user was forced to scroll the
news window horizontally or vertically to see all of the original material from the linked sites.
Thus, advertisements contained on the original pages of the linked sites were reduced in size, and
in some cases were totally obscured by the Total News frame. At the same time, the user was
continuously exposed to the advertising contained within the Total News frame:
(^3040) “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such
use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes
such as ... news reporting ... is not an infringement of copyright.” 17 U.S.C. § 107.
(^3041) The framed used by Total News to display its directory buttons took up slightly more than 15% of the page
width. Gahtan, “Inappropriate Use of Frames May Constitute Infringement,” Cyberspace Lawyer, Apr. 1997, at
2, 2.