The Law on Framing
The case law on framing is surprisingly thin. Though the technique has been around for over a decade and several suits/disputes have come out of it, all of the cases seem to have been settled out of court.However, the case of Washington Post v. TotalNews may provide some clues as to the potential legal risks. The case, which was settled in 1997, saw The Washington Post sue a news startup called TotalNews because the site was using frames to link to Washington Post content rather than plain hyperlinks.
In the case, there were three primary objections that seem potentially relevant to the DiggBar:
- Trademark Infringement: Displaying one’s logo over another person’s content could be seen as implying a relationship between the two that does not exist and that, in turn could, be considered trademark infringement. For example, if the New York Times felt that the DiggBar was causing people to believe that Digg sponsored the newspaper or that the NYT endorsed Digg, they might have grounds for a trademark suit. Furthermore, if the NYT felt that the DiggBar caused confusion as to the origin of the reporting, they might have similar grounds.
- Copyright Infringement: Though framing doesn’t make an actual copy of the page that is being framed, one could argue that framing both violates the distribution right under copyright law and that it creates a derivative work based upon the original. Either of these would be a violation of the copyright holder’s exclusive rights, if it could be shown.
- Tortious interference with Business Relationships: By reducing the amount of visible area on the page and running their own advertisements (should they appear), the DiggBar could be accused of interfering with existing advertising partnerships on various sites.
The question is not just whether these approaches could work, but whether they could work in 2009, with more tech-savvy judges. It is very difficult to say and there are no clear answers.
Still, there are clearly many ways that a litigious-minded content creator could sue Digg for the DiggBar.
The Ethics of Framing
If the legalities of framing are muddled, then the ethics are divisive. Some people feel that framing is perfectly acceptable, others think of it as a form of content theft. It is often a matter of personal perspective.Those who do object to framing typically do so on one of three grounds:
- SEO Issues: Though there is some debate as to how framing affects search engine ranking, at least one blogger has seen lower PageRank posts get bumped from Google in favor of Digg URLs already (see comments). It is pretty clear that linking to a page with the content in a frame does less good in the search engines than just linking to it directly.
- Advertising and Integrity: Though the DiggBar doesn’t display ads yet, it is foreseeable that it will at some point. Many sites don’t allow ads sites that link by framing are the only way that ads are displayed along side their content. Many people aren’t comfortable with other sites earning money directly off of their content, especially when they aren’t doing so themselves. Furthermore, other sites don’t like their pages to be altered in any way, including via framing.
- Visitor Interference: Framing not only reduces the screen real estate that the visitor has to read the content, but it also impedes their ability to copy the source link. Though Digg is also billing itself as a URL shortening service, there are still many cases where one wants to copy the full, original URL (IE: Three Count columns). Framing makes that more difficult to do and encourages users to pass around links to other domains.
The end result is that even Webmasters who are not outraged by framing still, usually, prefer direct links for most things. The question is whether or no Webmasters will be outraged enough by the DiggBar to try and force them to change.
