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Is HTML Copyrightable? 198

Posted by Cliff from the stuff-to-think-about dept.
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."
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Is HTML Copyrightable? More

Is HTML Copyrightable?

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  • The company that I work for retains all Interlectual property rights to all code we create for clients. That way we can resell the same piece of code again and again. If this is the case then there may be something in their case. They have some nerve though. 'We suck and can't finish the project. But we will sue the person that can.'
  • My friend bought a computer from Dell about a year ago. Just the other day, I installed a new motherboard, processor, and hard drive for him. So, using this logic if I'd have charged him anything, Dell could sue me because I modified a product they producded that is now owned by another....wtf?
    Imladris: Lord of the Rings Movie News [lordoftheringsmovie.com]

  • Unless there was a funky contract... (Score:4)

    by El Volio ( 40489 ) on Thursday May 11, 2000 @10:06AM (#1077739) Homepage
    ...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.)

  • IANAL, but HTML is copyrightable. The real question in this case seems to be who owns the copyright. First, the orignal code was performed as work for hire according to your account. The copyright of work for hire is usually owned by the entity which paid for the work to be done, not by the entity performing the work.

    The interesting question, to me anyway, is who owns the HTML which was automattically generated?

  • HTML cannot be copyrighted, but... (Score:4)

    by cybertad ( 173687 ) on Thursday May 11, 2000 @10:09AM (#1077741)

    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.

  • The legal standard: Work Made for Hire (Score:3)

    by Anonymous Coward on Thursday May 11, 2000 @10:10AM (#1077742)
    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!

  • You seem to have multiple legal questions here, and I am not a lawyer in any jurisdiction although I am 3-1 pro se.

    "Is HTML copyrightable?" Sure it is. You don't lose the ability to copyright code or text just because it has tags in it, do you?

    You hint that there's a question of who owns the copyright to the partially-completed work of the first company. All I can say is, "That's a good question and it depends on a lot of things."

    There is also the question of whether you've violated a copyright by modifying their HTML, assuming that the first company even owns it.

    And then you have to consider damages. It's possible to violate a copyright but prove that the copyright holder didn't lose money as a result...

    Oy, my head hurts. From what you've provided, it's a complicated situation. "Is HTML coyprightable?" is just one question among many.

  • Oh my... (Score:5)

    by legoboy ( 39651 ) on Thursday May 11, 2000 @10:11AM (#1077744)

    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.

    ------

  • When I have done design in the past, I've stuck language in the contract indicating that the client owns all the content and graphics, but I own the code, mainly so they couldn't resell my site with new content and graphics. (Note: I have no idea if that's legal or would hold up in court, but it was worth a shot in my mind.) There must be some kind of language about who owns what in the contract.

    Incidentally, claiming that the code isn't theirs because it's Dreamweaver generated seems specious to me. If I generate music with a MIDI program, the music is still mine, isn't it?
  • The company is bitter about losing the account with the advertising agency, that's for sure!! I'd say they're a first-year Mom and Pop with clueless morons behind the wheel. 'Gee, Bill. Let's get into this Internet thingie. We'll get a copy of some software and sell ourselves as web designers! They don't seem to have to know much!' I don't think they have a leg to stand on. Normally the fruits of paid labor belong to your employer. This includes work done on a conditional payment contract, as they probably were. (You don't get paid if you don't finish) Obviously the ad agency agrees with the two of us, and they're probably a pretty decent employer. They don't have to pay for a lawyer to defend you, after all!! Stick with them!
  • Regardless of the issues, it might serve you to retain a lawyer on your own behalf - who knows when the interests of the ad agency and yourself might diverge in this dispute.

    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...

  • 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.
  • *ding* give the parent post a cigar (and some karma)

    It all depends on the contract.

    The 'advertising agent' I did work with wanted 3X the cost of the web-site for the client to "own" the design. She claimed such pricing was 'standard' for the industry.

    I called her nutz. She doesn't "do the new media" anymore, and I don't work with her.

    Suggestion: Let anyone who works with the Ad company doing the suing about the lawsuit. And make as much of this dirty laundry public.

  • complex code (Score:5)

    by geekpress ( 171549 ) on Thursday May 11, 2000 @10:13AM (#1077750) Homepage
    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 [loc.gov] for the list of things that couldn't be copyrighted [loc.gov]. 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

  • html code cant be "owned". its not like the code cant be duplicated by someone else. code for anything is available on the web and in books. by sharing code we can make it better. its kindof like open source.

    what good is "good" code if it isnt used?

  • HTML is certainly copyrightable. I think it falls under the same copyright laws as any other written works.

    However, contracts might have reassigned those rights. Look into those as carefully as possible. It is possible, depending on the terms of the first company's contract, that they could have a case. IANAL, of course, but that's how it seems based on previous stories like this.

    By the way, I doubt that the "DreamWeaver defense" would hold up in court. So much stuff is generated by computer nowadays that I get the feeling that the program used to generate it is basically ignored by the law.
  • INAL but you should idg up some gereric stff you did long ago, find the same stuff in their generated code and countersue them for infringment. Then post the name of the company on SlashDot so we can slam their website.
  • According to the old Macromedia EULA in my hand, Macromedia claims right of use to anything generated by it. You retain ownership and copyright, however.

    There may be a monkey clicking the mouse and stamping at the keys, but the code doesn't just magically appear without said monkey.
  • If the original developer was not paid for their work, then whatever they developed is still copyrighted by them (even if they did not fulfill the terms of their contract.) If they were paid for their work then the copyright would be owned by the customer, unless their contract said otherwise.
  • Copyrighted materials are owned by the creator, by default. Often, there are work-for-hire arrangements, in which the creator gives up all rights to someone else -- commercial jingles, for example, are all work-for-hire -- but there always has to be an explicit contract saying so.

    Work-for-hire is pretty standard in software, and it makes more sense. But if the company suing you didn't sign such a contract (which is easy to imagine, considering how fast-and-loose the industry is right now), they might have a legal leg to stand on.

    Although this might negatively affect your case, my first instinct would be to publicize this nasty suit. Legality notwithstanding, I can't imagine a single agency willing to hire someone who sued somebody for maintaining their code ...

    Francis Hwang

  • Re:Oh my... (Score:4)

    by Vairon ( 17314 ) on Thursday May 11, 2000 @10:17AM (#1077757)
    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.
  • What did their contract say? If they at all agreed to the (common as dirt) terms that the client owns the code, then they have no leg to stand on. If not, then the ad agency signed a very stupid contract -- you should always require rights in perpetuity to use the code as delivered. It might be different if you could be accused of developing derived works from the materials, but this is clearly what they were contracted for in the first place.

    Sounds like lawyer-happy non-business people. No one with any sort of experience in contracting is going to believe they have a case by doing this, geez...
  • If the company that you were doing the work for paid your predessor for his work then you have nothing to worry about. If in fact the company did not, then they should not bring a lawsuit against you, but the company they were contracted to(the company you did the work for).

  • HTML is just a markup language... is RTF copyrightable? How about Postscript? Is ASCII text copyrightable? No.

    Why do I post? Because I have an opinion just like you and everyone else, and when things like this come up, and it could affect me or my business, then I feel the need to share that opinion.

  • Any copyrighted work that is processed becomes a "derivative work." Thus if I write some C code, not only do I own the copyright to the source, but also to any object files compiled (or derived) from it. (This assumes, of course, that I have not signed away my rights to the compiler company.) This also applies to any HTML processor. If I authored the pre-HTML source, I also own the copyright to the resulting HTML.
  • If you hired someone to build a bridge, wouldn't it be reasonable to conclude that the customer who ordered the bridge owned it....

    I mean, no judge worth is salt is going to let this stand up --- regardless if it was specifically stated in the original contract or not.

    If this other web developer was creating something at the direction of the ad agency -- the ad adgency owns it. That much is implied by the relationship. He was simply the tool builder that implemented the design....

    The first web developer sounds like a real class act...undoubtly this was one of his first jobs...and probably one of his last....

  • First off, I am not a Lawyer.

    I work for a company that hired an external company to develop and host an e-commerce website for us. The understanding (and contract) was that they own all the code. They have a set process that they use to make e-commerce sites (different designs etc. but same back-end), they use this same process for all their customers.

    From what I understand this is a pretty standard clause in a contract. I would ask to see the contracts and get them examined by my own personal lawyer. Get your lawyers opinion and don't rely on your employers lawyers, they are concerned about their employer first and you second.

    forge
  • A lot depends on what non-discolusure agreement you may have signed. I've learned to be very careful reading them after some friends I had signed agreements that basically said the company owns any idea they think of while in employment of the company (in or outside of work).

    But if someone was brought in to finish a job and never signed a NDA then I don't think the lawsuit has a chance to win.
  • A further note about damages: By law, the damages would encompass the financial loss of the copyright holder, and nothing else. In this case I would think you could be forced to pay for the cost of developing whatever the original company supplied (which they would estimate.) You really should consult a copyright attorney as soon as possible.
  • If the original text and image content of the web site was provided to company X by the ad agency, it seems possible that what company X really did is to perform a mechanical transformation of it into marked-up HTML. That is, the ad agency owns the copyright on the content, and hired company X to do some labour (which they did, albeit poorly - this would be what was bought and paid for in the original contract). The final HTML product is obviously copyrighted, but I'd suppose that it's a derivative work made from the original unformatted content (which belongs to the agency). Labour done to manipulate content needn't always create new copyrighted content. Some of the comments thus far seem to be confusing the question of whether the content is copyrighted with whether the added tags are (the latter being my interpretation of what's being asked here).

    Naturally it makes no difference at all whether they used Dreamweaver, vi, or wrote up tags on a napkin - the point is that they either created content to which they own the copyright, or (as I suggest above) merely used a particular tool to manipulate existing content.

    And now I've made myself sick of the vague term "content", so I'll stop.
  • I too work as a web developer and I do partnering with many other small web development company and everyone has their flavor of contract. I have seen a few that mentioned ownership of all materials but usually only until all payments were made. If the deliverable and payment requirements were met then it should be an open-and-shut case. Sounds like the original company didn't have the expertise to do the job or enough common sense to understand what their real position is - unqaulified ex-contractors :-)

    -Ray

  • Contractors own copyrights. (Score:5)

    by G Neric ( 176742 ) on Thursday May 11, 2000 @10:40AM (#1077768)
    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.

  • I would have to ask whether this is a question of the HTML code itself being the issue of the copyright, or simply the visible page. If I write a book, the words are copyright, not the language itself, not the letters in which it's written. Whether I transfer that from a paper medium to electronic media, as with audio content on cd's vs mp3's, the copyright is on the 'work'. SOMEONE owns the copyright to the work on this website. It almost sounds like it will be up to a judge to decide, but I seem to remember somewhere that in matters of work for hire, unless otherwise stated, the copyright belongs to whoever produced the work. If, however, copyrighted material belonging to your ad agency were used in that work, then that material surely could not fall within their claim. Also, what were your terms with the ad agency? Did you sell them the website, or did you sell them your time/services in finishing the website? On the one hand, you might have sold them a work which contained copyrighted material you don't own. On the other, you might have simply been performing contract work for them, in which case, I believe they would be responsible for copyright issues.

  • Re:The legal standard: Work Made for Hire (Score:3)

    by jovlinger ( 55075 ) on Thursday May 11, 2000 @10:43AM (#1077770) Homepage
    Hrm. Why is HTML copyrightable? I mean the tags, the structure -- I completely agree that the information being marked up is copyrightable, but HTML is so limited that there is only one (or a very limited number) way to mark something up in a certain way. This builds on the non-copyrightability (mentioned in an earlier post) of formatting.

    "hey! your table code looks just like mine. You must have stolen it!"

    For HTML code to be copyrightable, I should hope that it has some novel ideas or non-markup elements used in a non-trivial manner.

    So is it true that when you say that HTML is copyrighable, you mean that the design choices (layout) behind the formatting is copyrightable, but in many cases, the actual implementation (making emphasised text using the EM tag) is not?

  • I mean, the most basic issue is that HTML -- not including any sever-side scripting, javascript, whatever -- is ridiculously simple. What are they gonna do, copyright their unique use of <B>? If they don't own the content, then it's just markup, and it could very well be argued that the I.P. here is the design, not the tools used to create it. It's equivalent to a paper company trying to sue a magazine because they used the printing company's paper! It's just dumb.

    The other thing is that I always, always consider my HTML markup -- and my Javascript, too -- to be in the public domain, simply because once the page is published, anybody could view the source and take it without telling me anyway. Whether they'd want to, given the quality of code I write, is another matter :-)

  • I have to say that I've consulted this way and have had computer law classes that discussed this specifically. This guy is absolutely right.

  • I've been involved this stuff like this before.

    Unless explicitly stated in the contract, Company X holds the intellectual rights to any code written by them.

    Now, if this code was generated by a commercial software package, then they do not have a hope in hell, as the company that originally wrote the commercial development package holds the intellectual rights to the development package, and therefore holds the intellectual rights to any canned subroutines generated by the commercial package (they ususally grant an unlimited royalty free license to the developer who purchases the software).

    I actually had to write a contract that handed over all rights to a custom app I developed, but with a clause that gave me full unrestricted ownership of the code libraries I used/developed for the custom app.

    To summarize, unless explicitly stated in a contract, Company X has the intellectual rights to the code, and the client has a license to use the code, modify the code, but not re-sell it.

    Mind you, IANAL, but I've had to go through this shit before.....
  • I'm not a lawyer, so I'm sorry if people think this is a worthless quote. Isn't this situation comparable to an author who uses a publishing company to format, market, and distribute her book? Obviously, the author owns the content of the book, but the publishing house owns whatever rights it has towards the layout of the book. (ie. You couldn't sell ten pages from a book even by obtaining the author's permission.) Obviously, where the author's rights end is in the contract, so isn't the question (and a few other posts have said this) whether Company X signed a contract saying all HTML code it generated belongs to the first company.
  • There are two things that control who owns
    the copyright. The first is the contract.
    The general rule is that the person writing
    the code owns the copyright. Employees's
    writings are owned by the employer. Contractors
    usually own the copyright unless the contract
    specifies that it is "work for hire", in which
    case the client owns it.

    The other aspect is that copyright protects
    expression. Usually machine generated content
    isn't copyrightable per-se, but the concepts
    contained within it can be. Object code is
    protected because it is a automatic translation
    of the source code. So even though the code
    was machine generated it might be protected
    because it captured from an expression of
    what the screen should look like.

  • IANAL (Score:1)

    by zpengo ( 99887 )
    Slashdot should create a spin-off site called Lawdot where people can ask these sort of questions.
  • The WWW wouldn't be where it is today if it wasn't for ripping off other people's websites. That's how people learn to design dammit!
  • And you must be from one of those countries where (i) people must rely solely on political favours bestowed by bureaucrats and politicians to protect themselves and their property because your judicial system is a joke and (ii) people are too ignorant, stupid and/or dirt-poor to care about respecting and protecting intellectual property.
  • erm...what's the difference?you have copyright and ownership but they (macromedia) still can use it? sounds a bit contradictionary to me.
  • Personally, since Company X was unable to finish a project they were hired to do, it would be a breach of contract. Thus the contract is null and void.

  • I can't imagine that anything in one can do in HTML is novel enough to warrant copyright.

    Huh?! Plain text is even (marginally) less expressive than HTML, and last I heard, books were still covered by copyright.

    What if I created a web page that looks something like this:

    Personal Notes: I am Diana Hsieh (diana@geekpress.com), the owner and editor of GeekPress. I graduated from Washington University with a B.A. in philosophy in 1997. (I continue to write on philosophy, specifically Objectivism.) I then moved out to Los Angeles and programmed for a small web development company called cow for a year and a half. That's where I learned PERL and UNIX sysadmin. I have since moved to San Diego (La Jolla and then Alpine), gotten married to Paul Hsieh, and adopted a wonderful German Shepherd named Kate. I work from the office of our lovely home in Alpine. My immediate goal with this site is to make enough money to build a barn so that I may have horses again!
    Imagine if I copied your whole web site. Would you not object? After all, it's only HTML.
    ---
  • There is a reason contract programmers are called that. There is a contract involved. Typically the code belongs to the original author unless the contract specifies otherwise. I put some time in as a subcontract consultant. The terms of the boilerplate that those contracts were built on was that the customer got the rights to use, modify, extend anything I came up with. Actual ownership resided with the consulting company. I got paid by the hour by the consulting company, under a separate contract, with no ownership.

    Example. ABC Construction asks Dynamic Datacorp to revamp their logins. Dynamic phones me and sends me over. I rewrite a bunch of scripts. A week later, ABC asks Dynamic to set up a new machine, and Dynamic sends Joe over. Joe likes what he sees and saves it to a floppy to use in other similar situations. Is Joe violating ABC's ownership? No. The code belongs to Dynamic. Is he violating Dynamic's rights? I dunno. Probably he could use them at other Dynamic customers, but not for his indie consulting. Can Dynamic ask ABC for the scripts to use at DEF construction? Probably, but they wouldn't. Can ABC sell the scripts at the annual builder's fair? Probably not.

    Example 2. XYZ sales asks Doofus Design to build a web site. Doofus has them sign a contract granting all rights to Doofus. Doofus builds half of the site and stalls out. Flames fly and people say things that they will regret and everyone leaves. XYZ now hires Leet Design to fix the almost-finished website. It is likely that Leet CANNOT use any of Doofus's code. Because XYZ said in the original contract that ownership belonged to Doofus.

    Example 3. BCDEF Railway contracts with Maddox Systems Inc to provide a dispatch system. MSI is unable to meet the terms of the contract and litigation begins. A settlement is reached where BCDEF is allowed use and modify MSI source code in exchange for reduced damages regarding the unfulfilled contract. BCDEF cannot sell the dispatch system, but they can assign three programmers to it for three years to beat it into adequate shape to run. (The worst year and a half of my life. If code is too grotty to pay for, it is too grotty to use as a foundation for a major system).

    My conclusion. I think that XYZ should ask their lawyer whether they have any grounds to sue for non-completion of the original contract. Then XYZ could settle for a license to extend/modify/fix the code that Doofus was unable to fix. Unfortunately, I suspect that Doofus holds some strong cards here.

  • I too was in that problem . . . I did some FLASH development for the company and in the contract that was signed it was understood that the product I delievered to them was the Flash (.SWF) file. This however did NOT include the code (.FLA) I was gonna get sued and the ad agency threatened me but I simply pulled out the contract that was signed and in it . . it said the product would be the (.SWF) file. So then I sold them the (.FLA) files, but they thought that in developing Flash content that everything belonged to them . . yeah yeah . . no way . . .so get them contracts signed ppl ! =)

    PS . .I got my $100/per .FLA they didn't wanna pay
  • This is the problem..

    I don't think you should be able to copyright HTML because the number of terms and ways of doing something are very limited. If you use one technique one place to solve a problem, chances are that you will HAVE to do it that way again in the future.

    It's like putting a copyright on using the word snow, or apple, or something like that. Or something even more basic. Like copyrighting the verb 'to be'.

    I can see ways to copyright JavaScript and copyrighting the overall look and feel of the site. But copyrighting HTML? Oh my... How stupid.

    Of course, given recent rulings by incompetent judges, you never know what precedents may be set.

  • if there's any doubt BEFORE starting the job. This case is too late now and probably hinges on who's lawyer can make the best case (i.e., $$$) - but I see this all the time: people in general are so uninformed about IP law, and personal computers are so new in many business that many times a business will hire, say, a database developer and if you ask any one of them, "well, who holds the rights to the finished product?" they will just stare and blink like it's a non-issue. This should be settled during the negotiation phase - naturally the business would want the source and exclusive rights ("hey, your not going to write this on our dime and then turn around and sell a copy to our competitor!") and the developer would want to be able to reuse code on other projects.
  • Seems like the ad company had a dispute with the first developers. If that was the case, and the ad agency hasn't paid for the work....whose work is it? I suspect it still belongs to the original development shop, and they have a right to bring a lawsuit against the contractor.
  • HTML has the capability of presenting a layout, or look-and-feel, which is copyrightable.
  • "hey! your table code looks just like mine. You must have stolen it!"

    The issue you raise is what we lawyers refer to as the Merger Doctrine, which deals with the fact that there's only a limited number of ways to express some things. It usually shows up as a defense to copyright infringement: "I did *not* simply copy his table, I wrote it myself. Sure it looks exactly alike, but there's only a limited number of ways to write out that sort of table."

    To which the prosecution counters, "A- ha! If, as you say, you wrote it yourself and did not copy from the plaintiff, why then, Sir, does every single typographical error of the plaintiff's code show up in yours? Huh? And why, Sir, did the plaintiff's superfluous 3 tabs on the otherwise blank line 164 of the file also show up in yours, eh monkey boy?!?"

    Ah, I love slam-dunk fact patterns.

  • If this were true then C++ code could not be copyrightable since it simply used to generate the actual machine code representation of a program (and is hence a type of markup language for machine code).
  • Wow -- are all these lawsuits going to lead to a standard such as:

    a submit button that says "Submit" will be in the public domain (because it's the default).

    However

    a submit button that says "Process" will be owned by whoever first claims copyright as the "enlightened" person who decided to use a thesaurus?

    This could get really scary considering the amount of flexibility to be gained with XML...(Where in laymans terms, "new" tags and methods can be created...thus maybe copyrighted?)

    Hmmm...
  • We have taken the step of explicitly releasing the copyright on our html and compiled code to our clients.. That way there is no doubt that they can use it and hire another developer if they feel the need without us coming out and sueing them later.. It's actually gotten us a few clients ;-)

    Feydakin

  • Remember, HTML is just a presentation "language". It's not what is copyrightable.

    What IS copyrightable, however, is the data that it marks up.

    Hmmm. Tough issue here. And tough for me to see a difference between reusing someone else's HTML code and plagiarizing someone else's term paper, for example.

    Yes, both are just made up of language. HTML in the first case and, say, English in the second. But the term paper isn't a term paper until someone takes all those words the English language makes available and configures them into a term paper that makes sense out of the data it is trying to present. So, in that context, how the language is used is integral to the finished product.

    Likewise, a chunk of text isn't a nicely fomatted and graphically interesting web page until someone takes all the options HTML offers and puts them together in an order that makes sense out of the data.

    So I'm actually seeing how this case could have merit (although I don't really want to.) Tough one!
  • The HTML code created by bozo #1 was generated by DreamWeaver, right? So this is not a creative work. There is nothing unique about it; nothing to copyright.

    This reminds me of the story about the guy who sued his mother for slander after she told him he was overly-litigious.

    It's just that frivolous.

  • I would check the contract you signed when brought aboard the agency. If YOU signed a clause stating that all IP would belong to them - then chances are the former firm did as well. However, whether they did or not - if YOU did, then they're suing the wrong party. It would be the agency you contract with who is allegedly infringing their code (which may be why they're representing you... can you say s-c-a-p-e-g-o-a-t?)

    If your contract doesn't specify that the IP you create belongs to them, then chances are neither did the first firm's. In this case, yes - YOU ARE infringing on their copyrighted work. You would be best to redo the entire site from scratch, not using anything from what they left behind.

    In either case - GET YOUR OWN LAWYER ASAP! Either you are up the creak, or you're being set as the scapegoat. Remember - The Ad Agencies attornies represent the Ad Agency FIRST! You're merely a secondary consideration.
  • 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?
  • 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)....

  • change "is" to "should" (Score:3)

    by KDSigma ( 183981 ) on Thursday May 11, 2000 @11:36AM (#1077813) Homepage

    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 ;-)

  • Aha! I knew those copyright courses would come in handy some day!

    First, the orignal code was performed as work for hire according to your account. The copyright of work for hire is usually owned by the entity which paid for the work to be done, not by the entity performing the work.

    When you are dealing with legal copyright issues "work for hire" may not mean what you think it means. While it is true that "work for hire" is presumed to belong to the employer rather than the employee unless otherwise specified in a contract, according to copyright law "work for hire" only applies to work created by employees, not contractors or consultants. Work written by contractors and consultants are presumed to belong to the contractor or consultant unless otherwise specified in their contract.

    So, if I run a newspaper, any articles written by staff writers belong to the newspaper. Any articles commissioned from freelance writers belong to the writer. Of course, as a publisher I make damn sure that freelance writers sign all rights to commissioned articles over to me if I can.

    It seems pretty clear that this HTML was not created by employees of the company so you'd have to check their contract to see if it assigned intellectual property rights to the company that hired them.

    There is a copyright principle related to "value added". The person claiming the copyright has to "add value". This has prevented phone companies from copyrighting the telephone directory, for example. If all of the design and specification work was done by the company not the previous contractors and all of the HTMLing was done by Dreamweaver you may be able to argue that while they provided labour (like the telephone directory compilers) they haven't added intellectual value and thus cannot claim copyrights.

    Hoping this helps,

  • CODE and CONTENT are two different things. We're talking about CODE. Right?

    I agree with most of you guys, it seems to me that HTML is pretty damn un-copyrightable. What about all the free code sites, and all the O'Reilly books? Web Design is my job - please, whatever happens, don't let them take my <br> tag! My God, how would I feed my family?

    The Divine Creatrix in a Mortal Shell that stays Crunchy in Milk

  • HTML is NOT programming!!! (Score:3)

    by techwatcher ( 112759 ) on Thursday May 11, 2000 @11:41AM (#1077818)

    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....

  • Content in a book is intellectual property. It seems the issue is over the HTML code not the material that is being presented.

    The copyright of a book is on the content, not the language or the characters it is presented with.

    He already stated that the advertising agency had the content created already, the coders were simply hired to code not write an autobiography.
  • Sure HTML is copywriteable. You just want to make sure that your posterior is adequately covered. So by the numbers;

    1. Get your own lawyer.
    2. Determine if the part of the code that you used was itself copywriteable. That is, if you only kept simple HTML boiler plate to support functions you wrote, it will be much harder for them to claim it as their intellectual property... that is, you could just go run out and get the dev. application yourself, generate identical code, and it would have been your generation. In fact that may settle the case, tell the judge that you didn't realize that this was "Their code... and that you'll just go out by the generator and roll it yourself."
    3. Counter sue on the grounds that their suit is a frivolous personal attack designed to deny you of fair compensation for cleaning up their mess. Sue them for the cost of your lawyer, lost productivity, and any other obvious costs you can justify.
    4. Talk to your lawyer to see if you ca have their case dismissed on the grounds that they don't own the HTML... the company you work for does.

    You'll get a lot of interesting takes from folks who have a variing degree of legal knowlege. The best advice is to first get some personal representation.

    Anne Marie

  • IANAL, but... (Score:3)

    by jd ( 1658 ) <imipak@ y a hoo.com> on Thursday May 11, 2000 @11:50AM (#1077827) Homepage Journal
    I -DO- know a little bit about this. First off, there are parallels between this and the AT&T vs BSD case, in which it was accepted in court that a person cannot become contaminated by knowledge obtained when working for a company.

    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.

  • Something similar to this happened a few years back to Glassdog.com [glassdog.com]. The owner had a fairly complicated frameset going that another site ripped off and plonked its own content in to - and a similar debate started. Can you copyright the design? I think this is the issue here - it's not the content that's being contended it's the formatting or outlay of the pages that's at stake.

    The basis of copyright law is to strike a balance between providing authors or publishers enought control so that they're motivated to create and disseminate, and to limit control so society benefits from access to works. If you could copyright html then what kind of web would we have? It would be like trying to copyright grammar. What web designer out there didn't learn from looking at and borrowing others code? It's fair use in my book.

  • Actually, there is a site called lawguru.com that does exactly what you suggest. There may be others. I've used them a couple of times and have received good answers. It certainly would be a good place to go for the original poster because their answer certainly lies in the specifics of their case.

  • It's even sillier than that. (Score:3)

    by Tau Zero ( 75868 ) on Thursday May 11, 2000 @12:23PM (#1077842) Journal
    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
  • So at issue here is whether the previous company's work fits the Copyright Act's definition of a "work made for hire."

    Generally speaking, if there was no clause in the contract explicitly stating that the work done by the previous company was to be considered a "work made for hire," the previous company is considered the author, and thus, the controlling party of IP rights.

    Circular 9 [loc.gov] from the Copyright Office does a good job of explaining these issues.

    From the circular:

    Section 101 of the copyright law defines a "work made for hire" as:

    (1) a work prepared by an employee within the scope of his or her employment; or

    (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a sound recording, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

    (emphasis added)

  • IANAL, but I have studied this particular issue as a layman. HTML *can* be copyrighted since it is a "creative expression" "reduced to tangible form."

    About the only thing that *can't* be copyrighted is something with a "unique expression." Bit patterns for computer opcodes can't be copyrighted (only an 0x84ce adds the contents of the bx and cx register on some hypothetical processor); phone numbers can't be copyrighted (only 303-555-1212 gets Debbie Smith), but the symbolic name "add" and the font face/point size/etc in a phone book can and have been copyrighted.... and I pick these particular examples because they are both well-known legal cases covered in my software engineering class.

    HTML is pretty limited, but it still gives the author a significant amount of flexibility. He could use bold vs. italics, strong vs. emphasis, different fonts, different point sizes, plain lists vs enumated lists vs tables vs definitions, etc. HTML is clearly much more expressive than the conventions used in phone books, and the copyright on the latter has survived court challenges. Therefore, there's no doubt that any non-trivial HTML code can be protected by copyright law.

  • Re:It may depend on the contract (Score:3)

    by AJWM ( 19027 ) on Thursday May 11, 2000 @12:32PM (#1077849) Homepage
    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.

  • Check out this site on copyright law (Score:3)

    by crystall ( 123636 ) on Thursday May 11, 2000 @12:33PM (#1077850)
    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.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 [ivanhoffman.com] is a good jumping off spot for solid advice. YMMV, of course.
  • According to my ex-GF the lawyer, one of the basic principles of tort law is "join everyone, claim everything". You can always have claims or defendants dismissed from the action, but if you don't name somebody at the outset you can't add them to the suit later absent some very special circumstances (it's hardly fair, even by biased legal principles, to have part of a case tried and then add defendants who weren't even notified at the beginning and were unable to have their interests represented). Chris should probably have his own lawyer pleading his case, and move to dismiss him from the action. Oh, did I mention IANAL? I just dated one for a couple of years.
    --
    This post made from 100% post-consumer recycled magnetic
  • So if I use Photoshop to create some masterpiece (and maybe even Eyecandy and Kai's Power Tools for nifty effects), then it isn't a creative work? Or are you saying that HTML created using any program (even Notepad) is neither created nor unique?

    That's not really analogous. The original workers created neither the artistic content (the ad agency did that) nor the actual HTML (Dreamweaver did that). Also, neither Photoshop nor Notepad create anything themselves, but merely render what is input. Dreamweaver actually creates an HTML page, where there was none before. From what I gather reading the posting, it is the HTML that is considered copyrighted. And it was Dreamweaver created that.

    Always and inevitably everyone underestimates the number of stupid individuals in circulation
  • Comment removed based on user account deletion
  • What we have here is a problem of semantics. Is the language copyrightable (the DTD that is HTML)? No. Patentable, perhaps, that's not what we're talking about.

    HTML code that you (or a computer program you command) produce is most certainly copyrightable, just as source code is. The data (content) inside is also copyrightable, but a blanket copyright covers both.

    The precedent of copyrighting code was established in a lawsuit [cwru.edu] between Apple Computer and Franklin Computer in 1983.

    Example: If you created a web site using Yahoo's home page as a base, and changed all the words and all the graphics, you would still be liabel for copyright infringement.

    How this pertains to this partocular case depends entirely onthe arrangement between you, the advertising agency, and the end client.

    Kevin Fox

  • opcodes and phone numbers and street addresses (Score:5)

    by coyote-san ( 38515 ) on Thursday May 11, 2000 @12:48PM (#1077859)
    *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.
  • Remember, HTML is just a presentation "language". It's not what is copyrightable. What IS copyrightable, however, is the data that it marks up.

    That's totally bunk. The choice of which tags go where is part of the copyrightable expression. The whole html file would be copyrighted as a 'literary work', which is how programs (in source or executable form) are considered under copyright law. HTML would almost certainly meet the (*extremely* broad) definition of a program in 17 USC 101, and would have copyright protection as a program.

    However, it sounds very much like the original company created a 'work for hire', which means that the customer company owns the copyright. If not, all the person who posted would have to do is throw away the code, look at the output, and reverse engineer something that looks similar. Even if the result happened to be exactly the same, that wouldn't be a problem if it was independently created. This is the 'merger principle' which says ideas that can only be expressed in a few ways are copyable.
  • A- ha! If, as you say, you wrote it yourself and did not copy from the plaintiff, why then, Sir, does every single typographical error of the plaintiff's code show up in yours? Huh? And why, Sir, did the plaintiff's superfluous 3 tabs on the otherwise blank line 164 of the file also show up in yours, eh monkey boy?!?"

    Something very similar to this happened in a programming class I was in. We were learning the lisp language, and were using an oddball interpreter.

    This interpreter had an idiosyncrasy where you would type in your function, and then when you used a procedure to decompile your function and send it out to the printer, to hand in, your function would include a little bit of internal boilerplate code that didn't do anything. I couldn't get rid of it, so I just turned in the assignment.

    The next class, our instructor came in and handed back the papers. Everyone had an "F"!

    She then explained to us that we had all obviously copied our assignment from one person, because almost of the assignments were nearly identical, with similar logical errors, but used different variable names, which was usual for this sort of assignment, but what had tipped her off to the cheating ring was that each and every program had the same, identical piece of meaningless, non-functional code! It took about 10 minutes to convince here that that little bit of meaningless code had been inserted by the compiler, and wasn't a sign of cheating.

    The next thing she said came as a complete shock.

    It turns out that there was a cheating ring going on. After our instructor made the incorrect assumption that that little no-op in each function was a sign of cheating, she went through the email spool, and actually found that most of the class were cheating! One student was selling completed homework assignments over email to the rest of the class, and the evidence was all there. Someone had the gall to complain that she had read their private email, and here response was, "Everyone who wants to contest this, see me after class, and we'll go to the Dean with the email printouts, your graded assignments, and see what happens." I approached her after class, ready to go the mat, because, goddammit, I wasn't cheating, and she immediately told me that she hadn't thought I had been in on the cheating ring, because my code was different from the people who did cheat, but I had been included in the 'F' list because my functions all had the same tell-tale code as the cheaters. I got my 'A'. To this day, I'm amazed that out of about 30 people, 25+ were cheating. Damn!
  • IANAL, but a law school student told me about a classic case involving a sculpter who sculpted a statue while working under contract. Later, he made some more of the statues separately and sold them to whomever. The original group which contracted him sued and the case went up to the Supreme Court where the sculpter's copyright rights were upheld. (I'm not sure what the legal arguments were.) So, apparently, there is legal precedent for a (sub)contractor claiming copyright on his work, but this is ridiculous. Should be an interesting test case to see if a court can understand HTML. (My take: company X loses.)
  • Well the code that they wrote for the agency is not the agencies. It is theirs, but that can depend on the contract. If you rewrote the code in perl and java then you are not really using their code. It would be like if I rewrote a book, but kept the plot the same.

    If they did half a job and you had to finish the rest it sounds like they have problems with the ad agency and not you. I personllay would let the lawyers fight it out.

    HTML itself may be copywritghtable, but did they actually copywright the code or are they just claiming copywright iolation? If they actually have a copywright then they have a case. If they did not they have a flimsy case.

    send flames > /dev/null

  • While what happened in your class was pretty clearly cheating (sale of results by one student), I'm bothered by similar stories I hear in which several students collaborate on methods, and tend to converge on similar (though usually not identical) code.

    IMO, this second case is a valuable lesson in the power of group development, sharing ideas, and the open source methods described by Eric Raymond in The Cathedral and the Bazaar. Much more valuable than the typical function-and-methods lessons taught in CS programs. Education has the problem of trying to assign credit for work performed, but an enlightened instructor could probably work out some compromise method.

    What part of "Gestalt" don't you understand?
    Scope out Kuro5hin [kuro5hin.org]

  • 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
  • That's the way I see this - when you encounter something new, is there any harm to see if someone else's already experienced the same situation?

    Think of the coding paradigm - if someone's already written a library routine that does what you want, why reinvent it?

    If they rely solely on /. for legal advise, god help 'em. If it's yet another resource to make use of, why not put it to use?

  • Good News, Bad News (Score:5)

    by John Murdoch ( 102085 ) on Thursday May 11, 2000 @01:42PM (#1077879) Homepage Journal

    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 [www.icca.orgtargetblank] 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?

  • DO NOT allow them to settle in any way which causes a monetary judgement to be assessed against you. Even if they completely reimburse you for everything.

    Why?

    Because it is a severe negative item on your credit report, and you will get denied for almost any credit application you seek. Also you get get denied employment and insurance (or pay very high rates) for "bad credit". I am not a lawyer, go see one. They'll probably tell you the same thing.

  • The contract is key. (Score:3)

    by Ungrounded Lightning ( 62228 ) on Thursday May 11, 2000 @05:39PM (#1077890) Journal
    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!

  • Inner Child Productions (mehampster@aol.com) owns Hampsterdance [hampsterdance2.com]. Funny, the music was copied from Disney's Robin Hood, and the graphics reportedly came from Harvard hamster web sites, but the <html> is mehampster's. A different implementation (like Assassin's Hamster Blast [newgrounds.com]) is a new work, not covered by mehampster's copyright. And a parody game written in C (such as my GUWAME Hampsterdeath [rose-hulman.edu]) is definitely not a copy, right?.

  • The real issue is not who own the copyright of a piece of HTML code, the issue is, is there a copyright on HTML code at all.

    HTML tags are in many way codes and codes are copyrightable. However HTML codes are not exactly program codes.

    I am very interested in this issue because I have done something similar, but not in any commercial manner. In my personal homepage, I have used the HTML template used by X11.Org [slashdot.org]. Now can they sue me?? I have in my website given them credit for the actual design, but does that save me from getting sued if they decide to do so(heaven forbid!!)??

    Manifest
    Concerned
  • The concept of copyrighting HTML 'code' is rediculous - it's akin to copyrighting the contents of an RTF or Word document. Copying the actual code is as easy as downloading the bloody page. Viewing HTML and using it for oneself is as easy as viewing it through the "View Page Source" feature in any browser. It's an open standard.

    The HTML itself can't be copyrighted, but I'd guess that the site design could be - which Company X had nothing to do with anyway.

    Company X is so hock full of crap their eyes are brown.

    -------
    CAIMLAS

  • The law . . . (Score:3)

    by werdna ( 39029 ) on Thursday May 11, 2000 @08:59PM (#1077903) Journal
    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
  • 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.


    Are you sure?
    Then, if I run copyrighted.c through a preprocessor, the result is not copyrighted?

    Or if I paint a penguin in Gimp and save it as a .JPG, penguin.jpg is not copyrightable?

    I think that anything you can do with DreamWeaver shows "creative work", even the configuration files.

    I think the crux is in what their contract said (or didn't say) about the property of the result.

    __
  • The concept of copyrighting HTML 'code' is rediculous ... Copying the actual code is as easy as downloading the bloody page. Viewing HTML and using it for oneself is as easy as viewing it through the "View Page Source" feature in any browser. It's an open standard.

    Um, I hope you do realize that the same is true of the displayed text, which is very definitely copyrighted. Go through your comment and replace every instance of 'HTML', and tell me you still don't see the problem.

    BTW, HTML being and open standard is irrelevant. English is an open standard as well, but few people find that convincing grounds for fighting copyrights. Its the use of HTML that's as issue.

    -jcl

  • The company I work for is going through a somewhat similar legal battle. We are using php to dynamically generate web pages filled with business listing on different localities around the country. A competitor took the generated HTML and copied it onto a static page complete with my spelling mistakes, and a couple of listings that fell out of alphabetical order (it was the first rendition posted). We have the html printed out, and dated/notarized, but how do you explain to the layman(jury) that this is stealing? we had several weeks into collecting this data, and they swiped it in two seconds! As for ownership of html/websites, My company goes by the understanding that until the last bill is paid, entire ownership(minus any customer supplied images/text) is owned by us, and once the final bill is paid, the customer takes complete ownership. Just like when you drop your car off at the garage.
    regards,
    Chiaben

  • Hi!

    Am I sure? As I mentioned earlier, the crux of the question here is whether anybody is sure of whether or not this is a copyright violation. It is the uncertainty of the thing that creates room for lawyers to get involved.

    Let's say that I'm very confident that machine output is generally not regarded as a creative work that is subject to protection with intellectual property laws. The process involved to create the machine output may certainly be creative--but the output is not. Anybody applying the same inputs to the "machine" will get the same output--so there is nothing creative in the output. The creativity that is subject to legal protection is in the "inputs" to the "machine"--the work done in DreamWeaver.

    There was a young writer on Slash,
    Who decided he needed some cash,
    He served up hot grits, arranged on a Ritz,
    And learned that you can't make money writing limericks if you can't make them rhyme.

    Okay--so there is a creative work. (Remember, the law doesn't pass judgement on whether the "creative work" is actually any good.) When you view that in your web browser you're seeing the result of two different processes--the process of creating the HTML code that is shipped to your browser, and the code generated by your browser for your display. If you select that pseudo-limerick and print it you will create another program, quite possibly a PostScript program. Is the HTML code a creative work? Nope--anybody typing that bit of cheap doggerel into the SlashDot comments page will produce the same result. Anybody printing the limerick (to the same printer) will produce the same result. The only creative (hey--I finally used "hot grits" in a SlashDot post, although I have absolutely no clue why the lameboys think its funny) work was the limerick.

    All that said, in this case the question is whether the original guys did any creative work in the HTML code, or if they just presented code output from DreamWeaver. If they just turned in the output from DreamWeaver, and the finished project looks substantially the same, it would be tough to claim injury. On the other hand, if the creative work has been altered, and the client is refusing to pay the first crew, then they have something to stand on. The "work for hire" rules in the Copyright Act require that the author of the work has to get paid. A work-for-hire contract necessarily requires the "hire"--if the author of the work isn't paid, the author still owns the work. And can protect it under copyright.

    So, is our friend in trouble? Nope. He didn't make the contract with the first crew. They can ask (or compel) him to cease and desist, but their litigation is with the advertising firm that's in the middle of this.

    But my opinion isn't what matters. Our friend should absolutely, positively, get sound legal advice from a practicing attorney.

  • It depends a -lot- on the nature of the changes, the country you're in, and the phase of the moon.

    "Derived works" (such as translations) are covered in most (but not all) countries, and what falls under the classification of a "derived work" is very variable. Transliterations, such as ROT13, will almost certainly count. Total re-structuring, to improve performance or readability, might not. With the former, you're not really changing the structure, merely it's representation. With the other, though, you've a totally new organisation.

  • If you created a web site using Yahoo's home page as a base, and changed all the words and all the graphics, you would still be liabel for copyright infringement.

    The problem is one of finding a hard limit. For example, I could probably (I don't feel like checking) create my response solely by cut/pasting character strings from your message. That wouldn't be a copyright violation. The other end of the spectrum would be a verbatim copy. The problem is where to draw the line.

  • Yesterday I learned the aweful truth...

    Microsoft has in fact (years ago) come up with a "compiled html file" format, which surprisingly enough requires IE 4.0 or later.

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