It’s now possible to copyright HTML (hypertext markup language) code and text. More specifically, in a decision issued by the U.S. District Court for the Northern District of California in January 2016, the court ruled that the developer can copyright HTML code and text associated with a custom search results page of an online advertising platform.
This decision, the first of its kind in California, will have significant implications when developing websites for e-commerce companies and any company that wants to reach its customers via the Internet. A website’s HTML is readily viewable through standard browsers. It’s not uncommon for a developer to “take a peek” at the HTML of other sites when developing a website for a client. Even though a website’s look and feel may not be copyrighted, in some cases the underlying HTML will be. Website developers and e-commerce companies should be careful as they build websites to avoid copying copyrighted subject matter, and should take affirmative steps to protect the HTML code and text associated with their own websites.
In Media.net Advertising v. Netseer Inc., the plaintiff, an online advertising service provider, brought copyright infringement claims against a competitor for allegedly copying the HTML code and text from a custom-created search results page and using it to create its own custom online advertising platform and search results page. Plaintiff argued its HTML code is a literary work under section 102(a) of the Copyright Act. In support, plaintiff contends its copyright claims for infringement of its HTML code are supported by the Compendium of U.S. Copyright Office Practices (3d Ed.) (Dec. 2014).
The Compendium is periodically updated and published by the U.S. Copyright Office. It provides guidance to copyright applicants, practitioners, scholars, the courts, and members of the general public about institutional practices and related principles of copyright law. In particular, the Compendium states that while a website’s layout or look and feel is not copyrightable subject matter, its HTML may be. The most recent edition was published in December 2014, just four months after the plaintiff’s copyright registrations for the disputed HTML code became effective.
Defendant argued in response that plaintiff’s HTML consists solely of non-copyrighted Cascading Style Sheets (“CSS”), which render plaintiff’s copyright registrations invalid.
Generally, HTML is the standard markup language used in the design of websites. It establishes the format and layout of text, content and graphics when a user views a website by instructing its browser to present material in a specified manner. Anyone who has clicked on a browser’s drop down menu to reveal the elements of a web page has seen the array of instructions contained between the starting tag and closing tag. Web developers also use CSS, which, according to the court, are merely methods of formatting and laying out the organization of documents written in a markup language, such as HTML. There are different ways to build CSS into HTML, and although CSS is often used with HTML, CSS have their own specifications.
The Media.Net court found that the Copyright Office has decided to register HTML code as a literary work if it was created by a human being and if it contains a sufficient amount of creative expression. Evidently, the fact that an HTML code produces a webpage, the look and feel of which is not subject to copyright protection, does not preclude its registration. Presumably, this is because there are multiple ways of writing the HTML code to produce the same ultimate appearance of the webpage. That presumably is why the Copyright Office requires the HTML code have a sufficient amount of creative expression to be able to be registered. In contrast, because procedures, processes, and methods of operation are not able to be copyrighted, the Office generally will refuse to register claims based solely on CSS. The court found that portions of plaintiff’s HTML code meet the requisite level of creativity to be copyrighted.
Ultimately, the Media.net court granted defendant’s motion to dismiss the copyright claims on procedural grounds based on the plaintiff’s failure to properly assert how the defendant accessed plaintiff’s HTML code. The court also found the plaintiff’s complaint failed to list every portion of the HTML code the defendant allegedly infringed. Because the court granted plaintiff leave to amend its claim, the case continues. We will continue to monitor the case because it presents important copyright issues for e-commerce providers.