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Can FAQs Be Copyrighted?
scubacuda writes: "Are FAQs copywritable? Judge Barbara B. Crabb, of the U.S. District Court for the Western District of Wisconsin, in the case Mist-On Systems, Inc. v. Gilley's European Tan Spa, didn't think so."
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They simply said that you can't copyright the idea of an FAQ or the format of an FAQ, or a list of obvious questions.
If the FAQ had been swiped, with answers copied verbatim, it would have been a different ruling. The court ruled the competitor's FAQ was sufficiently different to not be an infringement, or so the article you point at said.
So this is much ado over nothing.
Has it been over a year since you last donated to the Electronic Frontier Foundation
According to the report, most of the reason for the decision was to do with the fact that there wasn't evidence of wholesale copying. There's only one paragraph in the report suggesting that FAQs in general can't be copyrighted, and my gut instinct says that something couldn't *not* be copyrighted merely because it's a FAQ. It would be the context and content of the FAQ that would determine whether it could be copyrighted.
For some reason this site won't let you read the article if you don't accept cookies.
"For every frequently asked question (FAQ) there is an answer. And with respect to the question whether FAQs posted on Web sites are deserving of copyright protection, Judge Barbara B. Crabb, of the U.S. District Court for the Western District of Wisconsin, in the case Mist-On Systems, Inc. v. Gilley's European Tan Spa, on May 2 answered "no." Thus, it appears that lawsuits designed to snuff out the competition by seeking to attack Web content such as FAQs may fail, and if anything, may embolden competitors.
THE ALLEGATIONS
Plaintiff Mist-On Systems alleged that defendant Gilley's European Tan Spa infringed on its exclusive rights under the Copyright Act by preparing and displaying on its Web page a page that mirrored the FAQ page on Mist-On's Web site. Mist-On sought monetary and injunctive relief from Gilley's based on the "irreparable harm" it had suffered.
THE COMPETING WEB SITES
Mist-On's Web page, entitled "Mist-On Tanning Frequently Asked Questions," consisted of a single page of 19 questions about the Mist-On Tanning process and provided other related hints.
Gilley's Web page, entitled Gilley's European Tan Spa "FAQ's Sunless Express Spray Spa," comprised three pages of operating instructions and 16 questions about the Sunless Express Spray Spa.
According to the court, "when the two works are compared side-by-side, similarities are evident." That is because "both web pages utilize the Frequently Asked Questions format," "both web pages use common words to begin each question, such as 'how,' 'can,' 'is,' 'what,' and 'will,'" and because "both web pages focus on a spray-on form of sunless tanning" and "provide similar information."
THE COURT'S RULING
Notwithstanding the foregoing similarities, the court held that "these superficial similarities fall short of proving copying" because they are not the equivalent of copying constituent elements of the work that are original. According to the court and prior case law, regardless of the "original authorship" contained in a work, "the facts and ideas it exposes are free for the taking."
Taking it a step further, the court held that "a business cannot copyright a Frequently Asked Questions page" or the words or phrases that comprise such a page because "the format of a Frequently Asked Questions page is a common idea in our society." Indeed, "the elements of a Frequently Asked Questions page (a list of questions beginning with common words) are stereotypical."
Ultimately, Mist-On agreed that it could not copyright the idea of a FAQ page. However, Mist-On argued that because the Gilley's FAQ page was so similar to the Mist-On FAQ page that there must be some copyright infringement.
The court swatted away this argument by noting the differences between the two Web pages, such as the fact that "the sequence, the wording and the number of the questions are different from each other," "five of defendants' questions are entirely unique to their page," "seven of plaintiff's questions are entirely unique to its page," and "the layout of the web page[s] is different." Moreover, "there is no truth to plaintiff's assertion that many of defendants' questions and answers are 'nearly identical' to plaintiff's."
Accordingly, the court granted summary judgment without the need for a trial in favor of defendant Gilley's.
LESSONS LEARNED
Care must be taken in taking legal steps to deal with business competition. Plainly, this particular lawsuit did not help Mist-On in its efforts to deal with competitor Gilley's. Moreover, bad facts can make bad law. Here, the decision to assert copyright infringement for Internet content such as an FAQ page might not have been wise, especially when there truly are distinctions between the Web pages at issue."
Per the article:
(and this is a better link too!)
Sig: What Happened To The Censorware Project (censorware.org)
I don't know what the hell Mist-On was thinking except for trying to eliminate competition. These FAQ's are hardly anything alike.
http://www.mist-on.com/faq.htm
http://www.gilleystanspa.com/content/sunless.htm#
--------- Beware the dragon, for you are crunchy and good with ketchup.
... is that you cannot protect an extrinsic convention (in this case a Question/Answer format). This is in contrast with other interpretations such as databases where the facts may be public (e.g. sports scores) but they've ruled that schemas and intrinsic data structures can be protected. This is a ruling that follows common sense as the parties indepedently constructed their FAQs and it would be unconciousable to extinguish one or the other.
... if it appears in an open forum then perhaps that establishes prior art which cannot be claimed as proprietary technology.
FAQs are a common industry custom, and much like man-pages follow a certain format, is based on expectations of that that information is intended to achieve. After all, similar intentions for a well-defined domain usually result in similar solutions. In this case attempting to use one legal concept (exclusive right to duplicate original copy) to achieve anti-competitive outcomes was rejected. There res decidendi (or question in conflict) was not relevant to copyright.
I hope some of the principles from this case can be moved over to the software patent domain. The reversal of historical application of patents as defensive shield towards modern offensive tactics (business process patent), is creating outcomes contrary to the original intent. When companies prepared to use new technology are esstoped from deployment by pure IP hurdles (cough*RamBus*cough) or other nuisance patents (cough*oneClick*cough), then perhaps it is worthwhile reconsidering redefining the bar to innovation.
Perhaps OpenSource could then be described as a defensive legal tactic
LL
This seems like it would fall under Feist v Rural Telephone Company, the "facts and 'sweat of the brow' cannot be copyrighted" ruling. In that, they found a phonebook was not copyrightable, as the information was not original and publically available. A FAQ is similar; "writing" one consists of copy and paste, and by that ruling can't be considered an original work.
t . tml
http://www.bitlaw.com/source/cases/copyright/feis
Link to Mist-on's FAQ on google cache.
And find here the alleged copy, Gilley's FAQ on google.
What do you think? To me, the only thing they have in common is the question marks, and that's not copyright infrigement.
There's no formal procedure - in the UK or the US. If you write it, it's yours.
If you so desire, you can register it with a copyright agency (such as this one in the UK), but that's only to establish precedence in case someone claims to have written your stuff before you did. Of course, if you're that paranoid, sending a copy to yourself by registered mail and not opening it is just as safe - and probably a lot cheaper.
From a non-lawyer. As I understand it, your work is copyrighted
- Informally by having been written. Automatic copyright.
- Informally, but legally, by putting Copyright (c) year by name.
- Formally by sending $34 and a copy of the work to the Library of Congress copyright department.
If the content of the FAQ is not soomething like "What causes a sunburn?"
From the article: "...the facts and ideas it exposes are free for the taking."
So if you right a FAQ about something general like 10 FAQ's about tanning, then of course the content isn't copyright protected, unless of course, you have unique information about some factor of tanning.
That's not to say that if your FAQ's are about a specific application or process that you've developed (which a lot of FAQ's are built to answer) that your FAQ would not be copyright protected.
The headline Are FAQs copywritable? is totally dependant upon the content of the FAQ, not the fact that it is an FAQ.
There are 01 types of people in this world. Those that understand binary, and me.
- You get paperwork regarding when the document was written that makes excellent evidence if a lawsuit arises regarding your copyright.
- You are entitled to sue for more in damages if your copyright is threatened.
Basically, if you care enough about your work that you would be willing to defend your copyright in court, you should consider registering it. If you are formally publishing the work, you definately should consider registering it.I am also not a lawyer, the above should not be interpreted as legal advice.
----
Open mind, insert foot.
I hate to read articles about legal issues on Slashdot, because they often show no understanding of the issues at all. Really, you should stick to technical and pop cultural issues.
As the parent correctly states, the court did not say FAQs are not copyrightable, it said there was no copyright infringment in this case. Here is the gist of the article (pasted):
According to the court, "when the two works are compared side-by-side, similarities are evident." That is because "both web pages utilize the Frequently Asked Questions format," "both web pages use common words to begin each question, such as 'how,' 'can,' 'is,' 'what,' and 'will,'" and because "both web pages focus on a spray-on form of sunless tanning" and "provide similar information."
Notwithstanding the foregoing similarities, the court held that "these superficial similarities fall short of proving copying" because they are not the equivalent of copying constituent elements of the work that are original. According to the court and prior case law, regardless of the "original authorship" contained in a work, "the facts and ideas it exposes are free for the taking."
- Have a picture
From http://www.lapl.org/central/guides/copyrights.html , What cannot be copyrighted?
"Titles, names, slogans and phrases cannot be copyrighted. Other items that cannot be protected by copyrights are: ideas, methods, procedures and common knowledge such as a calendar. If the work has not been fixed in a tangible form, it cannot be copyrighted."
Emphasis on 'methods, procedures and common knowledge'. The key words in a FAQ are 'frequently asked', by humans, to humans. FAQs tell us how to do something, provide a method for understanding, or give us specific procedures. The same questions are going to have the same answers, even if written slightly different, and thus should not be copyrightable.
Here an interpretation from http://questy.com/tech/inet6.htm
"A fact cannot be copyrighted. A list of facts cannot be copyrighted. However, when I write a document that lists the facts, but also includes my opinions or add original content in addition to the facts, I can copyright that document."
Imagine being able to copyright that a corn seed should be planted at 2inches then watered.
Now if I were to write 'Unique Questions that Only I have the Answer To', maybe I could do something with that.
banal, yes, but I wouldn't say it doesn't deserve mention. it does deserve being described correctly, though.
it reminds me of a local free computer magazine/ad rag that sued a new rival. their complaint? the rival had a list of local BBSes, which "clearly" had been invented by the first computer rag.
rather than fight, the new struggling computer rag stopped carrying BBS listings. they later folded.
cases like these deserve mention because we need to convince people of the need to fight idiotic IP claims like this.