Use of Internet content remains sticky legal area

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The Internet's capacity to provide easy access to information, as well as its powerful means for disseminating information, has cultivated a myth that all Internet content is in the public domain. |ret||ret||tab|

An alarming number of clients, even many who are technically sophisticated, erroneously believe that if you can find information on the Internet, you can link your Web site directly to the information, copy it, or incorporate it into your own site without risk. Not true.|ret||ret||tab|

Increasingly, clients are seeking guidance in maintaining control over access to their Web page content and unauthorized copying, along with risk management advice in dealing with the appearance of their information on other Web sites. The amount of litigation is increasing as companies stake out and defend their Internet turf. |ret||ret||tab|

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Common legal theories |ret||ret||tab|

Three primary liability risks affect even the most common of Internet tools: copyright infringement, trademark infringement and unfair trade practices/competition. Copyright law provides a mechanism to attack unauthorized copying, use and dissemination of a party's original content. Trademark law prevents others from commercially using a trade name, phrase, logo or design that is sufficiently similar to a senior user's mark in a manner that may create consumer confusion, dilutes the senior user's mark or harms the senior user's reputation. Unfair competition and unfair trade practice theories cover a much wider gamut of commercial activities that unlawfully harm another business. |ret||ret||tab|

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Risky Internet practices|ret||ret||tab|

There are many ways to access other Web sites' content. "Hypertext links," typically represented by underlined words or icons, are the most common means. When clicked, these links display content from another Web page. |ret||ret||tab|

Providing a simple link to another party's home page generally poses little risk. The home page is a controlled access point to the world at large, through which the Web site owner can set terms of use specifying conditions and disclaimers, and limit access through passwords and security features. |ret||ret||tab|

The home page may also contain advertising for the owner's goods and services, or those of third parties, who typically pay the site owner a set rate for each time a user "clicks" on their banner ads. Links that alter a home page's appearance or bypass it altogether, however, can take away the owner's control and advertising profits, and thus may lead to conflict. |ret||ret||tab|

One risky, but common, type of linking is called "deep linking." A deep link takes the user directly to content beyond another party's home page "deeper" within the interior of the Web site. This can rob the linked site's owner of both Web site control and/or potential ad revenue, as the deep link allows users to bypass the linked Web site's disclaimers, terms of use and advertising. Accord-ingly, unauthorized deep links have been frequently challenged in court. Until a clear trend develops, however, clients should know that unauthorized deep linking remains perilous. |ret||ret||tab|

"Framing" is a type of link that provides linked content on only a portion of the screen, while the original Web site's information occupies the rest of the screen. Because content from two or more Web sites is displayed, this practice can create confusion about the source of the displayed information. Several suits have attacked framing under both copyright and trademark theories. All framing cases to date, however, have been settled prior to any ruling on the merits.|ret||ret||tab|

"Metatags" consist of text used in Web site programming code, which is invisible to the Web site user, which exists solely to trigger Internet search engines that are looking for the metatag text terms. For example, a sporting goods Web site might use "Sports Illustrated" as a metatag on its site. Sports enthusiasts searching for the magazine will instead be mysteriously directed to the sporting goods Web site, even though the users cannot see the text that triggered the hit. Because the metatags are difficult to detect, they can make it difficult to police unauthorized trademark uses by competitors and others. A good tip for clients concerned with this practice is to simply run a search for their business name or trademarks on an Internet search engine, and see what Web sites pop up.|ret||ret||tab|

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Avoiding litigation|ret||ret||tab|

The safest way to use another parties' content or link to their site is to obtain permission. Many home pages provide information regarding linking to their site, often for no charge. Permission can often be obtained through simple e-mail exchange. For clients who desire to permit and encourage linking to their own sites, a standard permission agreement can help them maintain control of their site, and place clear limits on the use of trademarks and/or copyright material. |ret||ret||tab|

More elaborate transactions, such as collaborative Web site development and cross-linking licenses, will likely need to be customized to identify the parties' rights, responsibilities and expectations.|ret||ret||tab|

|bold_on|(David Barnard is an attorney with Lathrop & Gage in Kansas City, where he specializes in intellectual property law.)|ret||ret||tab|

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