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."

Comments

Unless there was a funky contract...

[El Volio]

...then it should be open-and-shut. That is, assuming it was a standard development contract, all the IP should belong to the customer (the ad agency). If not, then they were already up a creek without a paddle. But in that case, what did they really buy for the money they already gave to the first development firm? The use of that code for a short time? Doesn't make sense that way.

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.)

HTML cannot be copyrighted, but...

[cybertad]

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.

Oh my...

[legoboy]

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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Re:Oh my...

[Vairon]

People probably ask legal questions on slashdot, because slashdotter's are the kind of people who might have dealt with these kind of legal problems before. It makes sense to me.

The contract is immaterial.

[booch]

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.

complex code

[geekpress]

That's a pretty astounding story. I can't imagine that anything in one can do in HTML is novel enough to warrant copyright.

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

Contractors own copyrights.

[G Neric]

You can moderate me down, or the funky contract guy, but only one of us is correct. I believe the law works this way:

• Authors retain copyrights unless they explicitly give them up in contracts, funky or otherwise.
• Employees are not considered authors of their work, their employers are.
• Contractors are the authors of their works. The people who pay the contractors only get copyrights if the contractors explicitly give them rights

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.

Re:You still might want to get your own lawyer

[ryanr]

I think that's an excellent point. If the lawyer won't tell you what's going on, they the employer hasn't hired a lawyer for YOU, they've hired one for THEMSELVES.

What happenes if they decide they are happy with some sort of settlement offer then ends up screwing you, but gets them off the hook?

opcodes and phone numbers and street addresses

[coyote-san]

*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.

Hoho - I'll tell you why they are helping you

[Alan Cox]

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

Good News, Bad News

[John Murdoch]

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?