Back in September 2005, just one month after this site launched, I published an article entitled Framing: Copyright Infringement or Legitimate Linking? that looked at the question of whether sites could (or should) frame third party content when linking to it.
Fifteen-plus years later, framing may have fallen out of favor, but the issue has become even more confusing and complicated.
That complication is because framing has overlapped with a similar issue, embedding. Both involve using special links to display third-party content on a separate website, both raise similar legal and ethical issues and both are practices that are being seen in a new legal light today.
The issue has been further compounded by recent rulings in U.S. courts that have shined a new light on embedding and a new ruling from the European Court of Justice that may drastically change the legal landscape around framing.
As such, it’s worth taking some time to figure out where things stand as of today and what it likely means for the future of both framing and embedding.
What Are Framing and Embedding
Framing is a tool some web designers use to subdivide the viewer’s browser and display multiple pages (or multiple types of content) on one screen.
Though this can be used to display pages or content from the same site, the most common (and controversial) use is to display content from an outside site and make it appear as if it’s on the site doing the framing. All the framed content is still hosted on the external website and that site ultimately controls what is displayed, but they may be unaware that the framing is even taking place.
The peak of the controversy over framing was in April 2009 when the website Digg began framing the sites it linked to so it could host a “Diggbar” above the content. This caused a backlash that eventually resulted in Digg backing away from the tool and, despite a brief return in 2012, it seemed webmasters had made their voices heard on the issue of framing.
Framing continued to fall out of favor (in part due to the move to mobile viewing) and, in October 2014 when HTML 5 was released, the frame tags were deprecated.
Embedding is similar in that it displays external content on a website. However, with embedded content, the material is displayed inline and will appear to the viewer to be just another image, video, etc.
Embedding has become exceptionally popular with social media content. Twitter, Instagram, TikTok, Facebook and others make it easy to embed public posts as does YouTube and other video sharing websites. However, as embedding content has become more popular, questions arose about the legality of such embeds, especially of the original content turns out to be infringing.
It’s also worth noting that an iframe, though technically a framing technique, is much closer to an embed as it doesn’t divide up the user’s screen and places the content inline. It’s the tool most commonly used to by social media sites to enable embedding of whole posts.
With this in mind, it’s easy to see why these practices would be divisive both legally and ethically. Creators, understandably, might be unhappy that their work is appearing on other sides without permission and embedders might not see much wrong, especially when the work is already publicly available and the creator has ultimate control.
Legally speaking, not a great deal happened on the subject. That is, until 2018 when U.S. courts began to chime in.
What the U.S. Courts Are Saying
For much of the internet’s history, it was widely assumed that embedding and framing were relatively safe activities, legally. Thanks to the “server test”, if the original content turned out to be infringing, it would be the uploader facing the legal consequences and not those that embedded off that upload.
The worst consequences, so it seemed, would be a broken embed.
However, that changed in February 2018 when a New York district court ruled that several news outlets may be held liable for copyright infringement for embedding a photograph of Tom Brady into their news coverage about it. The original image, captured by photographer Justin Goldman, was uploaded to Twitter without his permission and several news outlets embedded that tweet, prompting Goldman to file lawsuits.
The case pointed back to a 2014 Supreme Court ruling against the TV streaming service Aereo, which rejected a technology-based defense for Aereo’s unlicensed rebroadcast of over-the-air television. Though only a district court ruling, the decision has been used by other courts to look at the issue more deeply and weigh additional defenses.
Ultimately, the issue is very much up in the air, which is why the EU adding a new layer to the issue is tossing confusion on top of confusion.
The European Court of Justice Case
Earlier this month, the European Court of Justice (ECJ), the highest court in the EU, ruled that embedding is not the same as linking and that it may be a copyright infringement to embed content if the original creator took steps to prevent it.
The case didn’t deal with embedding directly but dealt with a conflict between a cultural heritage foundation, Stiftung Preußischer Kulturbesitz (SPK) and a copyright collecting society, VG Bild-Kunst.
SPK previously reached a licensing deal with VG Bild-Kunst to display thumbnails of art that they hold the copyright to and provide links to the original source. However, the original deal required SPK to take steps to prevent third parties from embedding or framing the thumbnails. SPK felt that this was too difficult and asked the court to remove that requirement.
The ECJ ruled on the case and found that embedding is different from hyperlinking, which was previously found to be legal. However, such embedding is only illegal if the rightsholder takes some action to prevent it. In short, any circumvention that takes place as part of the embedding or framing makes it illegal.
All of this leaves webmasters in something of a lurch. Something that, just three years ago, seemed perfectly legal is now riddled with legal questions both in the U.S. and the EU.
Fortunately, those issues should be easy enough to parse, at least for now.
Parsing the Uncertainty
The uncertainty is easy to understand. For much of the internet’s history, the server test, which looks at the server the content is hosted on, was considered the final word in this matter, especially in the United States. The Aereo ruling blew that up and subsequent rulings are beginning to dismantle it.
Despite this, embedding isn’t going away. Based on these rulings, webmasters should check to ensure the content they are embedding was legally uploaded (ideally by the creator or rightsholder directly) and one shouldn’t do any circumvention to do any framing or embedding.
However, I’d argue that these are steps that webmasters should have been doing before these rulings. Legality aside, it strikes me as highly unethical to use embedding as a tool to avoid liability for copyright infringement or to embed content that someone has clearly said they don’t want shared that way.
The legality seems almost secondary to the ethics in those cases. When there is so much content available that can be legally and ethically embedded, it seems needlessly cruel to make use of those creators that have decisively said no.
All of this begs a simple question: If all of this has been an issue for over 15 years, why are we just now getting these rulings?
Some if it comes down to the 2007 case of Perfect 10. v. Google, which is established the server test. With that ruling in place, there wasn’t much legal dispute to be had in the United States and it wasn’t until Aereo seven years later that the test was called into question.
However, a bigger reason is that embedding and framing may be legal issues, but there are technology solutions available that address them much easier and cheaply. Framebreaking scripts have been a thing for as long as frames have been and there are ways to prevent image embedding than a lawsuit.
Those worried about framing and embedding have long had tools to address those issues without setting foot in a courtroom.
That said, the rise of social media has created new problems, including using Twitter, Instagram and YouTube to embed copyright-infringing content. We even see this a great deal with dedicated pirate sites, which will often embed videos host elsewhere rather than hosting the content themselves.
The technology may be old but the internet around it has changed drastically and that has created new legal issues.
It’s going to be a long time before those issues are unwound, either in the U.S. or the EU.