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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
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)
READ THE DAMN ARTICLE BEFORE YOU POST IT ON THE MAIN PAGE!
This court case is so banal it doesn't even deserve mention. The plaintiff was suing the defendant on the grounds that it basically ripped off the idea of having a FAQ at all, which is about as asinine as having one publisher sue another for putting a synopsis on the back of a book. It wasn't even over whether one FAQ was a copy of the other - they didn't cover the same questions or use the same answers to those questions that were the same.
What's next, Slashdot posting an article about a court ruling that it is indeed legal for everyone to write books about how to use computer software without paying royalties to O'Rielly?
Even though others have clarified the ruling, I think it's worth noting (again?) that the judge did NOT think FAQs were not "copyrightable." In fact, the copy right of any work is automatically bestowed upon the author, but there is a formal procedure as well for registering a copyright.
The judge ruled that there was no copyright infringement. This ruling does not, in any way, imply that FAQs do not deserve copyright protection. It does, however, set the bar reasonably high for proving copyright infringement for a FAQ-style document.
This is a Good Thing. FAQs on vendors'/retailers sites will often have similar information. Think of the thousands of companies that install windows, or who sell nutritional products or cleaning products or pretty much anything manufactured by someone else. Two competitors could reasonably come up with very similar FAQs about that product category and its use, completely independent of each other.
The good news here is that the Court ruled in a reasonable manner, which we might hope will continue when the CBDTPA hits it in a few years...
someone stole my sig!He looked at me and said, "Kid, we don't like your kind, and we're gonna send your fingerprints off to Washington."
The submitter of the story obviously linked to the wrong article.
The court says that the idea of an FAQ is not copyrightable (good thing), that a list of common questions relating to a certain subject is not copyrightable (good thing), and that in this particular case, the answers where so different that they weren't infringing (we haven't got the lists for side-by-side comparison, so this remains unclear, but there sin't something fishy about it in itself).
To me, it seems that the court made a reasonable decision. In particular, it did not rule that FAQs (which usually include the answers) are never protected by copyright.
You know, the /. crowd houses an alarming number of alarmists. I mean, it's good and all that people are ever-vigilant, yadda yadda, but areound here alert is raised just to be called off fully half the time.
If the editors edited instead of simply relaying common memes, maybe this problem would go away. At least a little bit.
± 29 dB
... when the courts made a reasonable and fair judgement. Next people will be saying that M$ is not always wrong...
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