LINKS, FRAMES AND META-TAGS: MORE CHALLENGES FROM THE WILD WILD WEB

• Author: LOW FATT KIN, KELVIN LOI CHIT FAI, KELRY
• Date: 01 December 2000
• Published date: 01 December 2000

Since the popularisation of the world wide web, lawyers, legislators and judges have been constantly challenged with applying traditional legal concepts in the untamed realm of cyberspace. Recent years have thrown up dozens of cases dealing with such diverse issues as the liability of internet service providers for defamation and copyright infringement, the liability of cybersquatters in trade mark infringement and passing off, and questions of jurisdiction in the non-corporeal realm of the internet. Two issues that have recently reared their heads again pose a challenge to applying traditional intellectual property regimes in cyberspace: whether, first, the employment of meta-tags incorporating famous names or, second, the establishment of undesired links, in any way infringe any of the established intellectual property regimes. This article seeks to study and analyse the experiences in the United States and United Kingdom whilst at the same time providing a local perspective. It is hoped that this exercise will raise awareness amongst lawyers as to the need for an intimate knowledge of both the law and the technology involved to ensure a satisfactory resolution of these and other novel issues thrown up by the internet.

I. INTRODUCTION

The internet is a global, decentralised network of networks which has redefined commercial practices and cultural connections on a global scale. The internet was developed in the late 1960s as a pioneering network of the Defense Advanced Research Projects Agency (DARPA) under the authority of the United States Department of Defense and was initially a communications link between scientists and research contractors. In the early 1980s, the internet infrastructure was adapted for academic use and by the late 1980s, it began to be appropriated for civilian use. The first commercial internet service provider (ISP) became operational in 1988 and the subsequent development of Mosaic and Netscape browsers gave individuals an easy way to navigate the internet, thereby popularising its use.

The impact of the internet has often been exaggerated but the force of its impact is very real indeed. Governments which are used to controlling the flow of information through censorship are finding it next to impossible to do so on the internet. E-mail and other related internet communication services such as Internet Relay Chat (IRC) and ICQ (short for ‘I seek you’) are proving to be cheap, fast and popular alternatives to traditional means of communication, so much so that the postal service is these days described as ‘snail mail’. Businesses are also being transformed by this internet revolution, with cyberspace fundamentally changing the way many companies operate. Amazon.com has shown how

an upstart company can challenge the big boys of the industry by taking advantage of the low overheads of a virtual bookstore, causing more than a little unease amongst its more illustrious brick and mortar rivals such as Barnes and Nobles and Borders. Encyclopaedia Britannica, once sold only through its sales forces at premium prices has also found it impossible to resist a plunge into cyberspace. In 1994, faced with dwindling sales and waxing demand, Britannica went online, becoming the first encyclopaedia available online. Then, it charged a subscription fee of US$85 a year. Recently, in October 1999, it took an even bigger gamble when it posted the entire contents of its 32-volume set on the internet (at www.britannica.com) for free, seeking to generate revenue by selling advertising on its web site instead. Many more examples of companies taking the plunge into cyberspace abound. Whether they are being forced by market conditions or simply attracted to the pot of gold promised by the virtual rainbow, everyone these days seems to be clamouring to get on the ‘dot com’ bandwagon.

With this backdrop in mind, the importance of how traditional concepts of the law adapt and apply in this virtual realm cannot be overstated. Simply from the business end of things, billions of dollars are already involved with trillions more to follow,1 and a country whose legal system finds itself unable to grapple with the new issues thrown up by cyberspace will find itself lagging far behind in the race to come up tops. Since its popularisation, cyberspace has been challenging lawyers, judges and legislators alike to apply, adapt and sometimes totally rethink traditional legal concepts. In Cubby Inc v CompuServe Inc2 and Stratton Oakmont Inc v Prodigy Services Co,3 the United States courts were faced with the issue of the liability of ISPs for defamatory messages uploaded by its users. In Playboy Enterprise Inc v Frena4Religious Technology Center v Netcom On-line Communication Services Inc5 and Sega Enterprises Ltd v MAPHIA,6 the United States courts were challenged with the issue of the liability of ISPs for copyright infringement through the acts of its subscribers. Litigation over domain names have also thrown up questions

which have proven as difficult to grasp to the courts in both the United States7 and the United Kingdom.8

To satisfactorily resolve these issues, lawyers, judges and legislators must be intimately aware of not only the existing law, but also the technology involved, so that the law can be properly applied or amended so as to operate satisfactorily. With the multitude of issues thrown up by the internet, it is impossible to deal satisfactorily with more than one or two of them in the short space afforded by an article. We therefore seek to confine ourselves to a discussion of two somewhat more recent issues from the perspective of Singapore law as it now stands: whether and when links and meta-tags infringe intellectual property rights.

II. META-TAGS

Litigation over the unauthorised use of famous names and phrases in meta-tags is a very recent phenomenon and provides as convenient a starting point as any for the introduction of the challenges posed by cyberspace to traditional legal concepts, in this case, the traditional intellectual property regimes. Before a detailed discussion of the legal issues however, a short technical introduction into the function of meta-tags is in order.

A. Technical matters

Every computer connected to the internet possesses a unique set of numbers that identifies its location. This 32-bit or 4 byte numeric designation, in the form ‘199.12.1.1’, is called an internet protocol (IP) address.9 The form is also known as the dotted decimal and each of the four sections is a decimal number from 0 to 255 and represents 8 bits of the IP address. Parts of the address specify a network while the rest specifies a specific host on that network.

IP addresses are, unfortunately, unwieldy and difficult to remember. The domain name system (DNS) is the internet’s standard for host names (such as ora.com) and is made up of a hierarchical system of domain name servers which resolve them into IP addresses—so that a request to

http://www.ora.com is translated to http://198.112.208.23.10 Its unique, customised and user-friendly mnemonics thus operate to shield internet users from the arcane and technical world of 32-bit IP addresses and networking. Every domain name can be translated to any IP address and there is no logical connection between an individually selected domain name and the IP address.11

The value of a simple and memorable domain name is incalculable to a business and has no doubt fuelled the aforementioned litigation over domain names. Very often, a customer who is unsure about a company’s domain name will often guess that the domain name is also the company’s name. However, as any net savvy user would testify, this guessing game leads more often than not to disappointment. Furthermore, not every web site has the benefit of a memorable domain name.

Another popular means of navigating the web therefore is through the use of search engines—such as Yahoo, AltaVista or Lycos—to assist in locating the desired web site. In this exercise, the user will type in key words—for example ‘Star Wars + review’—which the search engine will search for. These search engines generate databases, listing keywords and locations where they are found, by sending out ‘spiders’ to ‘crawl’ the web. When a search is conducted, a list of hits is generated, listing web pages in order of relevance.

The programming language of the world wide web is HTML (though Java and derivatives such as SHTML are also in use) which determines features such as how the web site looks and how the user interacts with the site. A web page’s HTML coding, which is invisible to the end user, serves many functions, including that of enabling the designers of web sites to direct computer users to their web sites by affecting the search results generated by some search engines. This is done by embedding certain words and phrases into that part of the web site’s HTML coding known as meta-tags.

Certain search engines will make use of these meta-tags in generating their databases.12 The problem with such meta-tags is that there is no control on what meta-tags the owner of a web site can include in his web page. Often, meta-tags are used by web authors to catalogue or briefly describe the contents of their web page. However, there is also nothing to stop a web site which sold children’s clothing from including in its meta tags— If this is done, a user who runs a search for ‘legal advice’ on a search engine which generates its database using meta-tags

would generate a ‘hit’ list which includes that web site, notwithstanding that it has nothing whatsoever to do with legal advice.

When searching for a particular business entity, an end user who is not aware of its specific web address will usually type in such information as the entity’s corporate name, which may or may not be registered as a trade mark or other famous marks belonging to that company. To generate more ‘hits’, certain unscrupulous owners of web...