Table of Content

1. Introduction: The International Nature of the Internet

The international nature of the Internet is an obstacle in determining the law applicable to operators of Internet sites. Sites operated in Israel may be subject to the laws and judgments of each and every country from which they may be accessed². In copyright law, some international covenants adopt the doctrine of "national treatment," i.e., where copyright laws in one signatory state are applied to a work originating in another signatory state if the work is used within the boundaries of the first-mentioned state³. In contrast, trademark laws are exclusively local; they depend on separate registration in each state. Many kinds of law-damages, contracts, protection of privacy, criminal, etc.- are local. This situation creates legal uncertainty at the international level.

In view of the foregoing, there is a need today to regulate the use of the Internet in an international agreement or covenant. In a document entitled "A Framework for Global Electronic Commerce"⁴, U.S. President Bill Clinton called for the creation of uniform commercial principles concerning trade on the Internet, in order to assure legal certainty in this global environment. However, as long as no agreed upon international arrangement exists, we will have to cope with the reality as it is, strive to learn from others' experience (foremost that of the United States and Europe), and try to adapt this experience to local law in Israel.

One of the "hot" legal issues today is the use of links on the World Wide Web. Apart from the GUI, link technology is the factor underlying the success of the World Wide Web. In early 1997, the Internet world was shocked when two civil claims were brought in the United States⁵ to restrict the right of the owner of one commercial site to refer to another commercial site by means of a link, in the absence of prior permission for said link from the owner of the latter site. These claims focused public attention on the legal issues pertaining to use of links. Notably, however, they stemmed from trends of thought that have been circulating in the Internet world for some time.

The two aforementioned claims were based mainly on arguments in the field of intellectual property in a dispute between one site owner (the linking site) and the owner of another site (the linked site). One may typify these actions as commercial claims in which the rationales invoked concern intellectual property (infringement of copyright, infringement of trademark, dilution of trademark, etc.) as tools for the establishment of fair-trade principles in cyberspace. As of the present writing, no litigation of this type has yet reached the state of court judgment. Therefore, there is no way to know the extent to which the courts will recognize the legal rationales presented in these suits. In any event, one cannot state that these rationales are utterly groundless. They should be treated with caution and respectful suspicion.

Apart from commercial disputes between site owners, the use of links can cause a another kind of problem: a site owner's liability for the contents of another site to which he links. This liability may arise in the civil domain (as in liability for damage to a user because of use of material on the linked site) or in the criminal domain (e.g., referral to a linked site in order to commit a criminal offense).

This document presents practical recommendations for Internet operators in government offices concerning the use of links in their sites. At first glance, commercial issues do not seem relevant to governmental offices. However, they do appear to have implications, if only indirect, for all Internet site operators in all fields. Accordingly, it is important to understand the commercial issues, even if one cannot draw direct conclusions from them concerning the use of links in government sites.

The organization of this document corresponds to the foregoing thematic presentation. I begin with a discussion of the commercial issues and continue by discussing the other issues. Recommendations are presented at the end of each chapter and are listed in full at the end of this document. Finally, an appendix provides an example of terms concerning links that should be added to the terms of use of any Internet site. However, before discussing the legal issues, we should pause to consider the basic principles of link technology, in order to create a proper factual infrastructure for the discussion to follow.

2. Two Types of Links

To understand the legal issues surrounding the use of links, we should preface our remarks by noting the existence of two kinds of links that are supported by HTML, href (Hypertext REFerence) links and img (IMaGe) links.

An href link allows one to take two types of actions. One is a movement from one place on a page to another place on the same page. For example, one may present at the top of a page a list of topics that are elaborated further down (a table of contents of sorts), each item on the list serving as an href link. By pointing at the link and clicking the mouse, the reader jumps directly to the part of the page where the requested elaboration is found.

The second action is the presentation of a new page at a different "address" (URL) from that of the referring page. In this case, the address of the new page is behind the link. When the link is selected, the computer contacts the server directly, finds the desired page, "brings" it to the referring computer, and displays it on the browser. Today, the new page may be presented in one of three ways: (1) The new page replaces the previous one in the open window on the browser, (2) the new page is shown in a new window on the browser, while the previous page remains open but in background, and (3) the new page is shown within a frame of the referencing site.

In an img link, the user's computer goes to another Internal address (URL), imports a file that contains graphics or a picture, and inserts this file into a page already displayed on the browser of the referring computer. For example, one may place a graphics file containing the emblem of the State at a given URL and decide that this file be embedded at the top of every page on an Internet site of a government office by means of an img link.

Now, we may look into the legal issues.

3. Copyright

IMG links

The use of an img link may create an infringement of a third party's copyright. Such a link must be used cautiously. The problem comes up when this type of link is used to embed graphics, an illustration, a drawing, and/or a picture (hereinafter, the work) to which a third party holds the copyright-within the Internet site of the referring site, without receiving the copyright holder’s consent. Such a display may constitute a "derivative work" created in infringement of the copyright holder’s rights in the work-although no legal rule to this effect has yet been established.

Furthermore, if a work is displayed on the referring page without attribution, this may be an infringement of the moral right of the creator of the work to his or her creation.

HREF Links

Usually, the use of href links does not lead to legal problems in the field of copyright law, as long as the link causes the new page to be presented in the browser independently (i.e., replacing the previous page or displaying the new page in a new window).

Just the same, in October 1996 a court in Scotland was asked to issue a temporary injunction against a newspaper on the grounds of copyright infringement stemming from the use of links. The facts of the case are as follows: the "pursuer" of the inju, a newspaper called The Shetland Times⁶ has an Internet site on which it publishes an Internet newspaper called The Shetland Times Online⁷. The home page of the Internet newspaper presents headlines of articles and commercial advertisements. The headlines are used as links to articles on other pages on the site. (Each page has its own URL.) The respondent in the claim (a newspaper named The Shetland News⁸) set up an Internet site of its own, on which it showed the same headlines that appeared on the home page of the "pursuer"’s Internet newspaper. The headlines on the respondent's site served as direct href links to articles on the "pursuer"’s site, in circumvention of the "pursuer"’s home page and advertisements. Notably, the "pursuer" gave his prior consent to link from the respondent's site to his headline page but not to link directly to the pages containing the articles, in circumvention of the ads.

The "pursuer" argued, among other things, that the very act of linking to his articles without his consent constitutes an infringement of his copyright in these articles. The court issued the injunction on the basis of the factual assumption that the Internet is a "a cable programme service" under local law; accordingly, every referral from one Internet site to another causes the referencing site to broadcast/disseminate/copy material from the linked site. If this is done without the consent of the linked site, and assuming that the linked material is a protected work under copyright laws, then the copyrighted material has been infringed. The court admitted that it had not been presented an adequate factual (and technological) infrastructure and suggested that the results of the full adjudication might change once said infrastructure is adequately established⁹. The case is to be discussed in full in October 1997¹⁰.

The court seems to have based itself on an erroneous factual infrastructure by assuming that a link to another site causes the linked page to be shown on the user's computer by means of the referencing site. In fact, the link causes the user's computer to contact the server of the linked site and to ask it for the file (or files) of the desired page. The server of the linked site (not of the linking site) sends the desired file (or files) to the user's computer. Therefore, the "copying" of the linked material is carried out by the server of the linked site and not by the referencing site. The referencing site neither copies nor disseminates nor broadcasts material from the linked site. The only function of the link on the referencing site is to give the user's computer an Internet address with which it may download a file (or files). One should hope that this factual situation will be presented to the court properly in the October hearing and that the court will make the correct legal inferences therefrom.

This case is typical of development of law in the world of the Internet. One has the feeling that the defendant may have done something improper but finds it hard pinpoint precise legal grounds for said misconduct, since appropriate legislation and legal precedents are lacking. The problem at issue in the above case seems to be one not of copyright but of infringement of the "pursuer"’s trademark-or of "passing off." (The "pursuer" argued, inter alia, that the defendant's actions are tantamount to passing off.). One cannot rule out the possibility that the court will eventually find for the plaintiff, but on the basis of a rationale other than copyright infringement.

In contrast to the foregoing case, an href link may result in copyright infringement when the new linked page is shown within a frame of the referencing site. This may constitute the creation of a derivative work, which is forbidden without the consent of the holder of copyright in the original work.

Additionally, presenting a linked page in the frame of the linking site may modify the form and nature of the page displayed. For example, if the linked page is meant to fill up the entire field of the browser, its presentation in the frame of another site inevitably causes the size of the page to contract relative to the field of the browser. Instead of taking up the entire area of the browser, the displayed page must now compete with the frame of the referencing site, and the frame itself takes up precious space in the browser. Additionally, the artistic nature of the frame in which the linked page is displayed will not necessarily correspond to the nature of the page displayed. These factors may be detrimental to the nature of the displayed page, thus creating an infringement of the moral right of the creator of the page to his or her work. A "live example" of this problem follows:

Eight companies that manage Internet sites, including CNN, sued a firm named TotalNEWS for displaying their sites within its own frame¹¹. The statement of claim alleged, among other things, that displaying the plaintiffs' sites in the respondent's frame was an infringement of the plaintiffs' copyright. (Trademark infringement, trademark dilution, unfair competition, and other claims were also alleged.) The dispute was not been brought to judgment; the sides compromised out of court, the respondent agreeing not to display the plaintiffs' sites within a frame on its site. Notably, in the absence of a court judgment, one cannot know what legal theory, if any, prohibits the use of a frame under the aforementioned circumstances. Is the display within the frame a copyright infringement, a trademark infringement, or a violation of some other right? It is also worth noticing that this dispute took place in the commercial domain. Under the circumstances, the defense of "fair use" is rather limited. Under different circumstances-if, for example, the issue concerned display of an external (third-party) site in the frame of an non-commercial site-such display might be defended as "fair use."

Judgments handed down in the United States also allude to a rationale of contributory infringement of copyright. I will elaborate on this in Chapter 5 below.

4. Trademarks

A link may appear on the computer screen in any form whatsoever. It can be an address of another site, rendered in a given color and underlined. It may be the name of another site, the name of a business, or any combination of words that indicates the nature of the target of the referral. It can be a graphic element which, in one form or another, identifies the target.

The name of another site, or the graphic element that introduces the other site, is sometimes the trademark or the service mark (hereinafter: trademark) of a commercial entity. The letters CNN, for example, are a registered trademark of Cable News Network. The use of the letters CNN, the CNN logo, or the CNN URL as a link to the CNN Internet site is the use of a symbol which, under certain circumstances, may infringe on its owner's rights.

No binding law has yet been set forth in this matter. However, two claims filed in the United States have evoked questions about the use of links in the commercial domain. One of these claims was mentioned above, in the matter of TotalNEWS. The second is Ticketmaster v. Microsoft¹². Both of these claims allege, inter alia, that the use of a link that is also a trademark of the linked site by a commercial site may mislead the public concerning commercial relations between the referencing site and the linked site. The claims also allege that the use of a trademark by the referencing site may dilute the value of the trademark in the public's eyes. For both of these reasons, it is argued that the owner of the referencing site needs the consent of the linked site before the link is made. In the absence of such consent, use of the link may constitute trademark infringement or trademark dilution¹³.

The dispute in the Ticketmaster case has not yet been brought to judgment. However, Ticketmaster has been blocking links to its site from the Microsoft site. Practically speaking, this is the final outcome that Ticketmaster would like to achieve. Before the claim was filed, the sides negotiated over the terms of use of Ticketmaster's name on the Microsoft side, and these negotiations broke down because of Ticketmaster's financial demands. Ticketmaster alleges that Microsoft is making commercial use of its name and is deriving financial gain from doing so (by selling advertisements on the Microsoft site). Because advertisers are willing to pay for exposure on a successful Internet site, and because the success of the Microsoft site depends somewhat on the use of Ticketmaster's name, Ticketmaster considers itself entitled to a share in the profits of the site. By inference, while the claim rests inter alia on rationales in the domain of intellectual property, the purpose of these rationales is to establish commercial principles in the Internet world that will benefit the plaintiff's interests.

As stated above, the dispute in the TotalNEWS case ended with a compromise. The compromise agreement was not released for publication; what we know of it comes from media reportage. According to these sources, the plaintiffs agreed to allow the respondent to continue to use their trademarks to link from his site to the plaintiffs' sites. This consent was given at no charge. However, it was also stipulated that the plaintiffs are entitled to rescind this consent in the future. Furthermore, as stated above, TotalNEWS agreed to stop displaying the plaintiffs' linked sites in a frame of its site.

The two aforementioned claims point to a trend in the commercial domain, in which a link from one commercial site to another, in which the link in the referencing site is the trademark of the linked site, requires the consent of the linked site. We emphasize: no legal judgment has been made in this matter in the United States. Notably, however, the American Bar Associated has established a committee that is exploring legal issues surrounding the "commercial link," and this committee is to tender recommendations including a model agreement that regulates links between commercial sites¹⁴.

The impact of developments in this field in the U.S. on ourselves in Israel-especially with regard to the use of links in sites of government offices-is not clear. As long as government sites do not engage in commerce, it would seem, at least according to American law, that there would be no impediment to linking to American commercial sites (using their trademarks/servicemarks as links).

Israeli trademark law is rather vague in the aforementioned context of links. Additionally, the Trademarks Ordinance (New Version), 5732-1972, does not define trademark infringement in the same way this concept is defined in the United States¹⁵. Additionally, the Ordinance does not mention trademark dilution as an offense. As stated in the Introduction, trademark protection depends on registering the trademark in each and every state. Accordingly, a trademark not registered in Israel is not protected in Israel.

The main problem today is that the information disseminated over the Internet reaches all corners of the globe, and there may be circumstances under which information on an Internet site operated in one country would be subject to the laws of another country from which the site is accessible. There are precedents for this in the United States (among the various States, as stated in the Introduction) and in other countries¹⁶. However, as long as this issue concerns the commercial domain only, and insofar as government offices do not deal in commerce, there should be no immediate effect on the use of links to commercial sites from Internet sites of government offices¹⁷.

5. Liability for the Contents of a Linked Page or Site

The problems discussed above pertain to infringement of a person's right to make use of his/her property. The property at issue is intellectual property in works and trademarks. We have seen how links may infringe on people's rights to such property.

Another type of legal problem concerning links is the liability of a site owner (a general term for anyone responsible for the operation and contents of a site) for the contents of linked sites or for material found on these sites.

In principle, one may distinguish between two types of liability. The first type of liability is for damage to a visitor to an Internet site, caused after the visitor has relied on a reference to an additional site by means of a link, and after the visitor has suffered damage as a result of using material on the linked site. The liability of the referencing site owner may stem from negligence (in tort), in the original choice of the linked material, or in failure to take reasonable action to ascertain that the linked material has not gone out of date, or has not changed, in a manner that may cause the visitor damage. To protect the site owner from damage claims originating in reliance on material on linked sites, it is customary to display a disclaimer at the referencing site that absolves the site owner of liability for damage to any party that uses the link, visits a linked site, and is damaged by use of the linked site¹⁹.

Such a disclaimer has an effect on the contractual plane and leads to legal problems and questions of its own²⁰. The site owner should make sure that the terms he/she wishes to apply to the user on the contractual plane are presented in a manner from which one may infer the creation of a contractual relationship between the site owner and the visitor by reason of having visited the site. It seems to have become conventional in the world today to print a disclaimer on the bottom of every page on the site, to the effect that the site user is subject to terms of use. The notice itself serves as a link to the terms-of-use message on the site. However, some maintain that the disclaimer should be printed at the top of every page on the site, to make sure the visitor sees it. Some advertise the disclaimer in another prominent place on the home page of the site²¹. No custom or law has coalesced in this matter, and to the best of my understanding, the contractual force of terms of use and disclaimers on Internet sites has not yet been tested. Accordingly, one can only recommend that the site owner, when posting notice to the effect that use of the site will be subject to certain terms, make the notice sufficiently conspicuous as to attract the visitor's attention. The notice should serve as a link to the relevant terms of use and should appear in the conventional place on the page²².

Notably, a disclaimer is not always valid; its validity must pass the test of local law. What, however, is "local law"? Is it the law of the referencing site or of the site of the user who claims injury? This question is unanswered today, but presumably, if someone alleges that he was damaged by use of a site or by material from another linked site, he would also attempt to invoke the law most pertinent to him in terms of the validity of the disclaimer.

In Israel, the practice under the Uniform Contracts Law, 5742–1982, is that a court or the Tribunal for Uniform Contracts is entitled to strike down a disclaimer in a uniform contract if it is considered to unfairly impinge on the user's rights²³. To the extent that a service is given at no charge over the Internet, it would seem unlikely that a disclaimer referring to the use of that service would be struck down as being unfair. The limitations of this document do not allow us to examine this issue in depth; for the time being, it suffices for us to call attention to the matter.

Another type of liability for the contents of linked sites is the use of the Internet to carry out an illegal acts such as libel, incitement, contributing to the commission of offenses, or contributory infringement of others' rights. Just as an illegal act can be committed directly by dissemination of information through an Internet site, it can also be committed indirectly by means or with the assistance of links to other sites.

For example, in early June 1997 a British court issued temporary injunction in the case of Nottinghamshire County Council v. Gwatkin et al²⁴. At issue was publication on the Internet of a report on sexual exploitation of institutionalized children with the knowledge of public figures (social workers, police, etc.). The report was banned from publication in England. However, it was placed on Internet servers outside of England-in the United States and in Belgium. The respondents in Britain operated an Internet site out of Britain and equipped their site with a link to the report that had been posted on the aforementioned sites. The court ordered the respondents to remove the links to the report from their site until the matter could be fully adjudicated, a stage postponed to September 1997. The court's order does not elaborate the legal grounds for the court order.

However, the content of court order does suggest a rationale: infringement of the plaintiff's copyright in the report. The respondents were enjoined from causing publication and dissemination of the report without the plaintiff's permission. Implicit in the order is the understanding that linking to a document posted on an Internet site in violation of copyright, constitutes in itself a civil offense of contributory copyright infringement. In the United States, courts have recognized the contributory infringement rationale when a person who knows of an infringement committed by another person, contributes to said infringement in a substantial way²⁵. It should be pointed out that such contributory liability requires knowledge, intent, and substantive involvement intended to contribute to the original act of infringement.

6. Notice by Site Owner Prohibiting Unauthorized Links to His/Her Site

At times, a site owner advises the public or a specific person/organization that no link to the site should be made without his or her consent, or that the link to the site must be made solely under certain terms. This notice may be included in the terms of use of the site²⁷ or may be sent directly to specific players²⁸.

Is such a notice valid, and must it be honored?

Under certain circumstances, the notice may serve as a way to protect an existing right, i.e., the right not to have links established to the site in contravention of intellectual-property rules and of the site owner's wishes.

Under other circumstances, in the absence of an intellectual-property right, the notice may create a contractual right, especially if it is included in the site's terms of use and prohibits the establishment of links to the site without the site owner's consent²⁹.

If a contractual relationship of this type is created, the terms prohibiting creating a link to the site from another site without the site owner's consent would seem to be valid-unless there are legal grounds to conclude otherwise³⁰.

The copyright notice on the CiAS Internet site³¹ states that links to the site may be established by means of the site logo (a type of intellectual property-a trademark) as long as notification about such is given to the CiAS site beforehand. Is this statement meant to protect an existing right under intellectual property law, or does it create a contractual right? This is an important question because the statement does not distinguish between commercial and non-commercial use of the logo as a link. According to the rules of intellectual property, as seen above, only commercial use of a logo as a link may be an infringement or dilution of trademark. Accordingly, the rules of intellectual property present no legal impediment to the use of a logo as a link on a non-commercial site. However, if the aforementioned statement has contractual force, it would apply equally to commercial and non-commercial sites.

In view of all of the foregoing, how should the designer/builder/maintainer/owner of an Internet site behave when confronted with notice, of any kind, that prohibits links to a given site without the site owner's consent or under restrictive conditions?

As the foregoing legal analysis shows, this matter is still in its infancy and these questions do not have unequivocal answers. Accordingly, one should behave with redoubled caution and honor statements requiring consent of the linked site's owner before a link to his site is established, and to similarly honor any direct request from a site owner to terminate a link to his site. For the time being, the owner of a commercial site who wishes to use the logo of another commercial site as a link to the other site should obtain consent from the owner of the linked site to do so. At the non-commercial level, as with sites of government offices, this precaution does not seem to be necessary.

Some argue that the requisites of "netiquette" require tendering of notice to every external site that is linked (including non-commercial sites). My opinion is that this is unnecessary except where the owner of the referencing site fears that the owner of the other site may object to the link and wishes to avoid problems in advance. (Wherever the site owner serves explicit notice that links to his site needs his consent, this demand should be honored, as stated above.) In other cases, serving of notice to every linked site would place the ongoing management of Internet sites under an onerous and unreasonable burden, for this is an environment of rapidly changing content, in which many documents and much material may be presented with numerous links.

Furthermore, the link is the fundamental building block of the HTML language, on which the World Wide Web is based. In this reality, those who set up Internet sites on the World Wide Web should be regarded as having, as a matter of rule, given their consent to the establishment of links to their sites-insofar as they have not given notice to the contrary, or insofar as no legal rules (such as those of intellectual property) require a different position. Accordingly, I do not believe that every linked site must be given notice about the link to it.

7. Special Problems in Government Offices

Government offices are subject to the Takam (General Rules of Public Administration), which stipulate, among other things, that actions be carried out reasonably and that unlawful discrimination among equals be avoided.

Furthermore, Section 8.1.2 of the Takam states that sites of government offices may carry advertising only per approval of the Interministerial Committee for Approval of Commercial Advertising. A link to an external site may be construed as an advertisement for the external site, especially if the site at issue is commercial and if there is no substantive connection between referral to this site and the topic of the site and the function of the office. As such, such a link would require the approval of the aforementioned committee.

In view of the foregoing, one should make sure that the material on the linked site is reasonably relevant to the topic of the government site. F, reasonable action should be taken to ascertain that there are no additional sites of relevance to the topic, the owners of which might argue that their exclusion from the referencing site constitutes illegal discrimination by a government agency. Finally, the site owner should make it very clear that reference to an external site does not amount to publicity for, or advertising of, said site.

8. Conclusion and Summary of Recommendations

The foregoing review pointed to potential legal problems in using links on Internet sites. Law in this domain has not yet coalesced, and we currently witness an uncertainty that is not healthy for anyone. Therefore, in the course of this review, I presented practical recommendations to guide government offices in this regard. The recommendations are summarized below, and the Appendix offers an example of terms of use/disclaimer of liability with respect to the use of links at government sites. These terms should be inserted into the existing terms of use at the site or added in some other appropriate form.

Summary of recommendations:

This document was prepared at the request of the Government Internet Committee, in the discharge of my duties as legal advisor to the committee. This document is meant for use of the Committee in establishing guidelines for government offices. It is presented to the public on the Internet site of the Government Internet Committee as a service to the public and to the community of lawyers in the Civil Service in particular. The author of this document states emphatically that he does not have an attorney/client relationship with the public and this document does not represent legal advice to the public in any respect whatsoever.

Appendix

End Notes

¹ This document was prepared at the request of the Government Internet Committee, in the discharge of my duties as legal advisor to the committee. This document is meant for use of the Committee in elaborating guidelines for government offices. It is presented to the public on the Internet site of the Government Internet Committee as a service to the public and to the community of lawyers in the Civil Service in particular. The author of this document states emphatically that he does not have an attorney/client relationship with the public and this document does not represent legal advice to the public in any respect whatsoever.

² In the United States vs. Thomas (Nos. 94-6649, 1996 U.S. App. Lexis 1069 (6th Cir. 1996), the owner of BBS in the San Francisco area published pictures of unclothed women. In Tennessee, dissemination of material that is pornographic by the standards of the local community is a criminal offense. After a Tennessee resident was given access to BBS, the owner of BBS was issued an extradition warrant. He was brought to Tennessee, prosecuted for disseminating pornographic material, convicted, and sentenced to 37 months in prison.

³ The Berne Convention and the TRIPS agreement, which is based thereon.

⁴ Presented by President Bill Clinton on June 1, 1997. http://www.whitehouse.gov/WH/NEW/Commerce/read.html.

⁵ The Washington Post Company et al. v. TotalNEWS, Inc., et al., 97 Civ. 1190 (PKL), United States District Court, Southern District of New York, Feb. 20. 1997. http://www.ljx.com/internet/complain.html

⁶ http://www.shetland-times.co.uk/

⁷ http://www.shetland-times.co.uk/st/index.html

⁸ http://www.shetland-news.co.uk/

⁹ The court's ruling is posted at http://www.shetland-news.co.uk/opinion.html

¹⁰ One can monitor developments in this case at http://www.shetland-news.co.uk/appeal/html

¹¹ The Washington Post Company et al. v. TotalNews, Inc. et al. Fn. 5 supra.

¹² Fn. 5 supra.

¹³ In the United States: 15 U.S.C 114 (Trademark Infringement), 15 U.S.C 1125 (Trademark Dilution).

¹⁴ The report on the committee's work is available at the ABA site: http://www.abanet.org/buslaw/cyber/groups.html@IntelProp

¹⁵ Paragraph 46 of the Ordinance states: "The valid registration of a person as owner of a trademark shall entitle said person to exclusive use of the trademark for the goods for which the trademark is registered and in everything concerning them, unless stipulated otherwise in any terms and restrictions recorded in the register." (Paragraph 2 of the Ordinance equates a "service mark" to a trademark.)

¹⁶ A German court enjoined CompuServe from providing, within the borders of Germany, certain discussion groups that originate in other countries' on-line services.

¹⁷ The TotalNEWS site presents the following announcement in capital letters: NO RELATIONSHIPS EXIST BETWEEN TotalNEWS AND THE PARENT OR SUBSIDIARY COMPANIES THAT OWN THE THIRD-PARTY WEB SITES ACCESSED BY THE USER. TotalNEWS HAS NO OWNERSHIP OR CONTROL OF THE COPYRIGHTED AND/OR TRADEMARKED MATERIALS FOUND ON THE THIRD-PARTY SITES.

The appendix provides an example of terms of use including such a notice.

¹⁸ Below is a disclaimer from an Israeli legal site:

"The use of information found on the Internet requires extreme care and thorough investigation. Legal information, including that on the sites linked to from this site, is no exception. The existence on this site of links to other sites is not a warranty or assurance that the information contained on them is reliable, accurate, up to date or complete. The managers of . . . assume no liability whatsoever for any direct or indirect consequences of using information which is found through this site. The use of this site is subject to this disclaimer and attests to the user's agreement thereto."

Below are two further examples of disclaimers, from the Library of Congress site and the NASA site in the U.S.

"The Library of Congress Web and gopher services provide links to materials and sites which are not maintained by the Library of Congress. In providing this services, the Library of Congress cannot accept responsibility for the accuracy or the completeness of information found at other Web or Gopher sites."

"The links on this page take you beyond the realm of the NASA server. If you find a link that is broken, please notify wwwmaster@nas.nasa.gov about it so we may fix it if possible. Note that neither NAS nor the NAS WWW group are responsible for the data presented at the other end of these links. The data was deemed appropriate at the time the link was established, but the content may have changed over time. If you find that one of these links references data which you find inappropriate, please notify wwwmaster@nas.nasa.gov immediately. That said, enjoy your foray into Net surfing!"

¹⁹ For a concise and interesting article on disclaimers, see Graham J. H. Smith, "Web Page Disclaimers," at http://www.twobirds.com/library.internet.disc.htm

²⁰ Graham J. H. Smith, ibid.

²¹ At the TotalNEWS site, the notice is positioned more or less in the middle of the home page.

²² According to Paragraph 5.3.4.4 of the Takam (General Rules of Public Administration), notices of copyright and terms of use should be placed together, and the terms-of-use notice should serve as a link to the terms of use themselves.

²³ According to Paragraph 3 of the law, "A court and the tribunal may strike down or modify, in accordance with the provisions of this Law, a term in a uniform contract that has the effect-in consideration of the entire set of terms in the contract and other circumstances-of denial of customers' rights or unfair advantage on the part of the supplier that may lead to denial of customers' rights (hereinafter-prejudicial condition).

²⁴ http://www.users.globalnet.co.uk/~dlheb/legal1.htm

²⁵ Jonathan Rosenoer, CyberLaw, Springer, New York, 1997, pp. 5-6.

²⁶ The Appendix presents an example of a disclaimer that brings together all the elements mentioned in this Opinion.

²⁷ See terms of use at the CiAS site, which stipulate that links to the site by means of the site logo may be established only if the site owner is given notice thereof.

²⁸ Ticketmaster informed Microsoft that a link to its site may not be made without remuneration. CNN et al. advised TotalNEWS that links may not be made to their sites, nor may their sites be displayed in a frame of the TotalNEWS site, without their consent. The Shetland News linked to the Shetland Times site against the latter's wishes. Although the site owners had expressed their explicit and unequivocal opposition to these links to their sites, the links were established.

In "Hypertext Links: Are They Legal?" (by the Russel McVeagh McKenzie & Bartleet law office), it is reported that New Zealand Television regularly instructs designers of local Internet sites to refrain from establishing direct links to pages within its site (i.e., links that circumvent the site's home page) or to use the NZTV logo as a link to its site without obtaining consent therefor.

²⁹ See Chapter 5 supra.

³⁰ See Chapter 5 supra.

³¹ Fn. 27 supra.

³² The Appendix presents an example of recommended terms.

³³ The Appendix contains an example of a disclaimer that brings together all the elements mentioned in this opinion.

Appendix

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