The lawsuit filed by Facebook in California against the German site StudiVZ (and StudiVZ’s declaratory judgment action against Facebook in a German court) has been all over the newspapers and blogosphere. StudiVZ s an abbreviation of Studentenverzeichnis or Studienverzeichnis, which means students' directory. Studivz claims the suit is motivated by what I calls the failure of Facebook’s German language version: "Their strategy appears to be: 'If you can't beat them, sue them,'" said Marcus Riecke, chief executive of Studivz, which is owned by Verlagsgruppe Georg von Holtzbrinck, a German publishing company. The site has about 10 million members, mostly in Germany, Switzerland and Austria, although my German au pair uses it here in Connecticut. (I do wonder about the jurisdictional issue). A side by side of the two is available, here.
I haven’t seen Facebook’s complaint and so don’t know if it is a copyright infringement suit (as is usually claimed), a trademark suit, or both. Some of the language in press releases sounds like trademark, e.g., “As with any counterfeit product, StudiVZ’s uncontrolled quality standards for service, features and privacy negatively impact the genuine article,” Facebook is said to have stated in the complaint. Facebook is also said to have sued over the “copying the look, feel, features and services of Facebook.” Look and feel may state a copyright claim, but services don't. Even before the suit, blogs have been very loose about what they consider to be a “clone.” On July 11th, Mashable ran a post called “Copycats: Top 10 International Facebook Clones." There are services that market themselves as offering clone templates and functionalities for popular sites, but as the software industry discovered decades ago, "look and feel" charges are more easily made than won.
I have long had an antipathy to the entire concept of "look and feel" as any sort of measure for determining copyright infringement, and I think the phrase should be discarded. As long as ideas that may form the basis of copyrighted expression are not themselves protectable even though the expression is, the ideas should be copyable with impunity as long as the expression is not. And copying those ideas could easily result in a subsequent work that has a different expression that imagination will describe as having the "look and feel" of the first work. (See, e.g., Musto v. Meyer, U.S. Dist. Ct. S.D.N.Y. 1977.)
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