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Electronic and Digital Signatures

An electronic signature is generally any electronic data used to validate and authenticate the parties to a transaction. A digital signature, which is a form of an electronic signature, is a unique, encrypted code affixed to an electronic document or contract that authenticates the signor. The use of such electronic signatures allows parties to use the Internet to conduct transactions quickly and securely while reducing paperwork.

The most important federal legislation on electronic signatures is the Electronic Signatures in Global and National Commerce Act (E-SIGN), 15 U.S.C. sec. 7001 et seq., which became effective on October 1, 2000. E-SIGN provides that a signature or contract may not be denied legal effect “solely because it is in electronic form,” except as provided in the Act itself. See section 101(a)(1) and (2). An electronic signature is defined as any “electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or accepted by a person with the intent to sign the record.” Although E-SIGN does not apply to all transactions and writings, it applies to “any transaction in or affecting interstate or foreign commerce.” Because a “transaction” is defined as “an action or set of actions relating to the conduct of business, consumer, or commercial affairs site, and place it on the page.” For example, an online businesses may use an HREF link to link to a manufacturer’s web site or use an IMG link to insert images of a product from the manufacturer’s web site onto its own web site. Generally, there are no laws against HREF linking to another web page because the HREF link merely contains the coded information of the target’s address. Because the code is pure information, no copyright or any other intellectual property laws provide protection. However, online businesses should keep in mind several issues related to the practice of HREF and IMG linking.

When one incorporates content from another’s page via an unauthorized IMG link, there is no direct copyright infringement by the creator of the link because the image is not copied. As explained above, the visiting browser has provided the user’s browser with instructions to retrieve the image. It is actually only the web viewer who has copied the image. However, the creator of the link may still be liable under copyright law for contributory infringement, which occurs when one knowingly makes an infringement possible. Further, it is possible that a web site could be liable for copyright infringement if IMG links use several copyrighted images to form an entirely new “derivative work” on its web site. Generally, it is considered proper protocol for a web site to get permission from a copyright owner before placing an IMG link on its own web site. Web site operators should also be certain to properly attribute works or images that may be reached or created with links and not misrepresent the ownership of the work. Online businesses must also be careful not to infringe on the trademarks of others. If a web site falsely leads the user to believe that the web site is affiliated, approved, or sponsored by the trademark owner, it could be liable for trademark infringement.

A link to another’s page or image may also be potentially defamatory if it communicates a false and damaging statement about a person or entity. Further, even if a statement alone is not defamatory, it could become defamatory by providing a link within, before, or after the statement that directs the viewer to further information or identification.

Framing is a technique that puts a frame, or several frames, on a webpage that stays in place even when the viewer links to another site. The practical purpose of a frame is to be able to see information from several different sources on one display. However, because the original web site’s logo, color scheme, design, or other characteristics may still be on the frame(s), viewers may be led to believe that they are still on the original web site and seeing content created by the original web site. This situation creates a problem for some situations, such as when a web site that is being framed by another web site does not want to be associated with the framing web site but appears to be so because of the frame. Thus, framing can raise the same issues as HREF and IMG linking. Although the legality of framing is not certain, web site operators should appreciate the potential legal liability of linking other’s pages into frames without permission.

It should also be noted that some consider “deep-linking” to be web piracy if it is done on a large scale. Deep-linking is when a link is provided to a specific web page within another’s web site and not merely to the homepage. Some web operators are angered by this practice because the link takes the viewer directly to the page and bypasses its homepage, eliminating the ability of the homepage to build brand recognition, to supply important information, and to serve advertising functions. However, there is no law against deep-linking, and it is an extremely common practice that most see as not problematic, as long as it is not deceptive. Deep-linking has also been found legal by at least one federal court. See Ticketmaster Corp. V. Tickets.Com, Inc. (C.D.Cal. Mar. 27, 2000), No. CV-99-7654 (use of deep links to Ticketmaster.com did not violate copyright law because there is no copying involved, and the online ticket consumer is openly and obviously transferred to Ticketmaster’s website; deep-linking also did not constitute unfair competition because a disclaimer negated any confusion as to the true source of the ticket purchase).

Inside Electronic and Digital Signatures