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Is HTML Copyrightable?
Chris Redd asks: "I am involved now in a lawsuit where the basis is that HTML code is copyrightable. My question is, when can HTML code be copyrighted? Here is a brief explanation: I was brought in as a contractor to finish a website for an advertising agency because Company X (who started the job) didn't have the expertise to finish it. The advertising agency that brought me in did all the design, created the graphics and came up with all of the concepts (so they own the design/style of the site). Now the first company is suing me for Intellectual Property theft, saying I stole proprietary code. I don't see it that way, they didn't do any design, and any code they had was generated by a commercial program!" Strange, but I would think that since Company X were hired to do the job, then whatever they had developed belonged to the advertising agency that hired them. Am I missing an issue here that would make this untrue?
"The company they HAD doing it simply put the pieces together in DreamWeaver.
I used there DreamWeaver code as a base (to get it done quickly), but I went through the code and re-did it to run under Unix (they had it running on an NT box). I also replaced all the backend NT executables with CGI/Perl and a Java Servlet for the shopping cart, all code I wrote myself.
The advertising agency is having their lawyers defend me, but I wanted to get the technical view from Slashdot, since the lawyers just drill me and keep me out of the loop."
This shouldn't really be a matter of whether it's HTML, or any other particular kind of code, but a pretty normal IP problem. And how the code was generated shouldn't really be a factor either.
IANALBILTTATSA.
(I am not a lawyer but I like to talk about this stuff anyway.)
"You can never have too many elephants on your team."
First of all, this is a non-issue because everything you can do with HTML has been done 1000 times before... hell, they probably stole the code themselves.
Remember, HTML is just a presentation "language". It's not what is copyrightable. What IS copyrightable, however, is the data that it marks up.
IAAL, but get your own before you take my word for anything. 1) Yes, HTML code is copyrightable. If the company does have the copyright to it, they can stop you from copying. 1a) No, the company can't do anything about it if you re-wrote the thing from scratch on your own. 2) The company will have copyright if what you did was a "work made for hire," otherwise you have the copyright. 3) The question of "work made for hire" depends on agency law according to the leading case (CCNV v. Reid), which involves around 12 factors. Good luck!
I got an error the first time I tried to post this, so...
When, oh when, will people stop asking for legal advice on Slashdot?
Not only are the odds in favor of getting dozens of not-necessarily-correct opinions from non-lawyers very high, but I consider it extremely unlikely that any lawyer who does read this is going to give out free advice.
Spend a couple hundred bucks, and talk to someone in your hometown who is well versed in copyright law. Don't ask the folks who (in general) come off as supporting the copyright violations facilitated by Napster and Gnutella.
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If a tree falls on an anonymous coward yelling 'first post' in the forest, does anybody hear?
I would think that
1) an HTML file could very well be copyrighted, just like any other work, but
2) The advertising agency would own the HTML that the original company created for them. The lawyers, I'm sure, are going back over the contracts that defined that relationship to make that determination.
They certainly sound like litigious parasites, that's for sure...
Stop by my site where I write about ERP systems & more
The company selling the code can't retain all rights, or else you wouldn't receive anything from them. The contract clearly had to indicate that there was some type of deliverable. The delivery of that product or service implicitly has to be usable by the recipient. In other words, even if they retain a non-exclusive right to the work they create, they cannot exclude you from using what they sold you. There is no way that they can win, unless the company never paid them at all for their partial work.
Software sucks. Open Source sucks less.
I checked the copyright office's web site for the list of things that couldn't be copyrighted. Included on that list was "mere variations of typographic ornamentation, lettering, or coloring." That's a pretty good description of what HTML does.
Also on the list was "works consisting entirely of information that is common property and containing no original authorship." HTML code would seem to fall into that category as well.
I'd say that there is no standing to claim HTML as copyrightable, but who knows what silliness the courts will engage in this time.
-- Diana Hsieh
-- Diana Hsieh
GeekPress: The Weirder Side of Tech News
The last point is the reason that this is a standard clause in a contract. If it gets left out, the copyright belongs to the author, not the payer. You better get a lawyer, my friend, the bad guys have the law on their side this time.
I'm sure there are plenty of people more than interested in sharing information and advice, but unfortunately the article (and original email, possibly) make it pretty much impossible.
First off, it doesn't sound like they are claiming to have copyright on HTML code. Not only would that be tenuous under the best of circumstances, but the fact that Dreamweaver was used makes it even more unlikely.
And oh, by the way they did some back end code that we've re-done in CGI. So is THAT what they're suing you for? Did you take their code and remake it in a different environment? That hasn't anything to do with Dreamweaver or HTML.
And we certainly don't have enough information about the situation to make any meaningful judgement. Was the first company paid? Did they have a contract, it would say who owns what. No advertising company would contract out work without saying who owns what because the likelyhood of reuse is too great.
The major question is: WHAT THE HELL ARE THEY SUING YOU FOR? Without the answer to that question, NO ONE here can do more than speculate inaccurately.
And please, if you don't know what the phrase "First North American Serial Rights" means, PLEASE PLEASE PLEASE STOP GIVING LEGAL ADVICE (More like wild speculation)....
Recursive: Adj. See Recursive.
When, oh when, will people stop asking for legal advice on Slashdot?
probably a few days before ACs begin posting insightful, interesting first posts...
Not only are the odds in favor of getting dozens of not-necessarily-correct opinions from non-lawyers very high, but I consider it extremely unlikely that any lawyer who does read this is going to give out free advice.
So what?
I doubt most people asking for "legal advice" are really looking for something that will hold up in court. Perhaps the original question should have been "Should HTML be copyrightable?" That's much more interesting, falls within the realm of everyone here, and still serves the original purpose of this topic - to get the kind of feedback, moral support, and entertaining bitching that real lawyers (who are already involved) don't provide.
I personally see 3 elements to the issue:
(1) the actual info being marked-up
(2) the design (layout, javascript, DB-integration, etc)
(3) html tags
(1) the info
Just as copyrighteous as a book, magazine article, or painting. IANAL, IANAMoron either, and that clearly belongs to the site's owner. So it isn't the issue. BTW, I don't want to get into a discussion about whether copyright itself is valid or obsolete.
(2) the design
I think this is the sticky point. For something complicated like, say, the architect's plans for the Empire State Building or the bloated code that is my operating system (I'll give you one guess...), it seems like that should be copyrightable. For something simple like a plain drinking glass, it definitely looks like it shouldn't be.
Where's the line? I saw some pretty innovative stuff on a site featuring 5 KB websites - even a 5040 or so byte e-commerce site. That's impressive, and I feel like it should get copyright protection. Then I look at the crappy website my friend made (great guy, no html skills) and think "no way!" Shouldn't there be some hard and fast rule? Ideas?
(3) html tags
Obviously not, but it would be fun to see someone (w3c?) go around suing everyone using table tags... :-)
Anyway, the incompetent prior developer is probably making a claim on #2. Should that be valid or invalid? Or somewhere in between?
(secretly hoping not valid, having ganked a whole lot of html code...hmmm, maybe Slashdot has something clever I can steal ;-)
I'm killing time, time's killing me
~ Kyle
The copyright law grants AUTHORS copyright immediately they write their text (in any medium), and HTML is not (properly understood) coding or programming. The presumption, unless stated in a contract to the contrary, is that AUTHORS retain all rights to their text. Exceptions: work for hire, and screenplays (where producer has to own the text for various reasons). In both exceptions, the writer must be paid more than for normal text in the expectation that for writers, retention of their right to resell is part of the value of their work.
Now, if you really mean you altered scripts embedded, or dynamic HTML, or the like, you may have a case. But if you basically reused the person's (company's) text, you may well be in violation of their copyright.
I am primarily a writer (a documentation specialist) who treats Web sites as just another type of document when I produce one. Last year, I created (and illustrated) a Web site for a company, and uploaded it, and then asked the owner if it really made sense for me to handle the promotion (at a high rate of pay), or he would hire someone else to do that stuff for him. He, as I hoped, hired someone else to do the promotion (i.e., most of the placement with search engines, etc.). Note that I had already constructed several "gateway" pages so basically anyone could promote the site, too!
So this so-called professional designer who supposedly offered my client his promotional expertise, to whom I gave the password for the site, then changed ONLY the banner and background (replacing them with ones I considered very inferior!). Next he removed my own personal copyright statements, and represented the site as his work!
Well, it isn't. I wrote that site -- especially all its text. I did not give up my copyright by specifying it was a "work for hire" because a lot of what I wrote is reusable. (I have performed many works for hire, normally in cases where the work entails proprietary secrets or is so specific for that client it cannot be reusable, AND I am paid adequately for giving up my copyright to the material.) One of these days, I'll get around to suing that momzer....
Secondly, copyright EXPLICITLY covers a specific organisation of data. No other organisation, even of the same data, is covered by copyright. That's why dictionary writers can't sue Slashdot posters.
Lastly, code generated by a code generator falls under the code generator's licence, NOT the licence of the person using it.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Even if it is a creative work, Chris Redd has re-written most of it (it's not the design studio's work any more), and most important of all, it was a work for hire and the client owns it (unless there was explicit contractual language to the contrary). Company X should eventually lose their shirt in court in a countersuit for frivolous prosecution.
--
This post made from 100% post-consumer recycled magnetic
Time is Nature's way of keeping everything from happening at once... the bitch.
agreements that basically said the company owns any idea they think of while in employment of the company (in or outside of work).
Yep, such language is not uncommon in such NDA/IP ownership/etc agreements. A while back I was asked to sign such (along with the usual paperwork) as a condition of employment at [large long distance telco]. They faxed me the docs to sign and send back.
Now, they hadn't countersigned the docs, and I figure anything in a contract is open to negotiation, but rather than simply cross out the offending verbiage I retyped the document, printed it out in the same format using the same font, and signed and returned that. Not my fault if they didn't read it before accepting it.
Not that it ever came to a test, mind.
-- Alastair
There have been numerous LONG discussions of this very issue, specifically relating to HTML/site design/site construction on the HTML-Business list at HWG.org (HWG = HTML Writer's Guild, not Horny White Guys). If anyone is interested, the discussions are in a searchable archive.
While there's lots of angst and chest beating (very entertaining), it boils down to getting a lawyer well-versed in copyright law to help you develop a STRONG contract.
A frequent contributor to this discussion there is Ivan Hoffman, whose web site is a good jumping off spot for solid advice. YMMV, of course.
*Augh*
The Copyright Office is refering to things like microprocessor opcodes, phone numbers, street addresses, etc.
Believe it or not, some companies have tried to copyright all of these items (well, at least the first two) as a backend way to eliminate competition. The copyrights on the symbolic opcodes (in assembers), on the style of phone books, etc., were upheld, but anything which is a "unique expression" wasn't upheld.
In a concrete example, "add" can be copyrighted because someone else will use "adi" (add integers) and someone else will use "adds" (add short values). But the binary bit pattern 0x80ec *can't* be copyrighted since that pattern, *alone*, does the desired act. Semiconductor manufacturers can't get an exclusive lock on assemblers/compilers via copyright law alone.
Ditto different phone book publishers can use different styles of presentation of the directory information, but all phone books must show the same number associated with the same customer. Your baby bell can't prevent other companies from publishing competing phone books - a major source of revenue from yellow pages advertising.
As for HTML, remember that what we casually call "HTML" is actually other text - clearly copyrighted text - which is marked up in some manner. Stylesheets *can* be copyrighted, and these copyrights have held up in court (see the phone book example mentioned above), but in all cases the tags should not be visible to the end user - only the text being marked up. Text which is clearly protected by copyright.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
If you are shown to have used copyrighted material of the first company then since the advertising agency failed to advise you they didnt own the code you would be sueing them in turn.
Alan
Hi!
First off, get thee to a lawyer. BUT not just any lawyer. Find a lawyer with significant experience with intellectual property law, particularly regarding programming issues. I would strongly suggest contacting your local chapter of the Independent Computer Consultants of America and asking for referrals to lawyers familiar with the IP issues facing consultants.
There have been some posts here that have suggested that HTML can't be copyrighted--that's probably not true. At the very least it is not legally certain, which is worse. When something is legally defined, it is generally tough to litigate. When something is legally vague, the lawyers come out in droves. And your client's insurance company (who is fighting this) has an incentive to settle to make the suit go away. And part of that incentive is that they can ask your homeowners' insurance carrier to chip in part of the settlement cost.
Here's the problem: computer source code generally is protected by copyright. I have, for instance, successfully pressured a recalcitrant client into paying up by threatening an action for infringement. But--copyright generally only protects the "creative work". The courts generally do not view the results of machine output as being protected by copyright. So the code you wrote by hand is probably protected--the code generated by the DreamWeaver guys probably is not.
Simple analogy:
What is the most commonly used programming language in the world today? The answer isn't Visual Basic, Perl, or C++. It is PostScript. PostScript is a complete programming language, and the output from your PostScript printer driver is actually a program that is executed by an interpreter running on the output device (usually your printer, but there are other kinds of PostScript interpreters). I have produced very carefully-written programs in PostScript (years ago, for typesetting equipment calibration), and I charged good money for them. Those programs were creative work protected by copyright. On the other hand, the PostScript program generated by your printer driver to print this web page is just machine-generated output--where's the creativity? There isn't any creativity, so there's nothing in the PostScript code to copyright. Your text may be copyrightable, my text may be copyrightable, and Andover's little blurb at the bottom asserts that everything else on the page is copyrightable--but the PostScript program to print all of it is not copyrightable.
You might find it useful to mention this analogy to your client's lawyers. You can actually save the output from a PostScript printer driver to a file, and browse the program with a text editor. (If you'd like to do this, I can also give you some hand-written PostScript to make the distinction between the two. Contact me at if you want some help.) So long as the HTML code originated in DreamWeaver the creative work is the design of the page as it appears on the Browser. The machine output isn't their creative work, so they can't sue to protect it from infringement. The owner of that creative aspect is the publisher of DreamWeaver--they're just using the "machine".
All of that said, get thee to a lawyer! Is it a pain? Yup. Is it an expense? Yup. But it is definitely worth the bucks to be sure. And it is always worth the bucks to bring your own hired gun to the table, rather than depend upon the charity of somebody else's lawyers. They don't call 'em sharks for nothing--and when did you ever hear of a charitable shark?
The contract is CENTRAL to the issue.
The original web site design - even broken and incomplete - is a copyrightable work. Copyright is automatically with the actual author unless he has traded that right away in his contract - for instance: as a "work for hire".
If the author traded it to his consulting firm, then the consulting firm holds the copyright, unless THEY traded it in turn to the customer.
If the web designer/design house wrote the contract, you can bet that they kept all the rights except the right to use exactly the code they provided, unmodified. Assuming this is true, if the site wants upgrades, or even completion, they would have to go to the original firm.
It's like dealing with professional photographers. You own the prints, they own the negatives. Want more prints? Buy 'em from the photog. Don't copy 'em at the photo shop or you're in deep doo-doo. (If somebody else wants to use 'em he needs to buy 'em from the photog AND get permission from those photographed to use their image.)
Still assuming the speculation about the web design house writing the contract is correct: If the customer hired you to fix it, and you didn't redo it from scratch with a different "look and feel", you made a derivitave work. So you and/or the customer are infringing. Whether you personally are infringing separately or acting for the customer is an open issue. But if the only lawyers in this debate are the web designer's and the customer's, and you're named in the suit, you can bet you're about to spin in the wind.
GET YOUR OWN LAWYER! NOW!
Caveat: IANAL. So get your own lawyer and ask HIM!
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Notwithstanding speculations to the contrary posted in these letters, HTML code will be protected by copyright to the extent that it constitutes original expression fixed in tangible media.
The code will be owned by the individual or individuals who performed the fixation, unless it is a work made for hire. A WMFH can occur only in the case where: (1) it is performed by a geniune employee within the scope of employment; or (2) it is a particular class of work performeed subject to a written document expressly stating that it would be work made for hire.
YES, HTML and related code can be protected. The issue is not whether there can be protection, but rather, what is the scope of that protection. This is, notwithstanding what I have seen posted here to the contrary, a complex question that can turn either way depending upon a host of particular facts.
You should not consider relying upon anything posted here (including the preceding remarks), but should rely instead upon the advice of competent counsel who has considered these issues on your behalf. Anyone who insists that it is "obvious" how these issues will turn without further information is either ill-informed or is furthering an agenda unrelated to your best wishes.
Best regards