Thursday, December 06, 2007

Septic System Substantiality Claim Flushed Down the Drain

In North Stamford, Connecticut, where I live, we have virtually no city services: we have a private well rather than city water; we have private garbage; and, we have our own septic system, rather than city sewer. This final point is a big one financially, as I had to put in a new septic system this summer after discovering an unwanted bubbling up in my front lawn: this is an expensive proposition for those who have done it. So it was with especial delight that I came across an opinion that combined my recent interest in waste disposal with copyright. The case is Biosafe-One, Inc. v. Hawks, 2007 WL 4212411 (S.D.N.Y. Nov. 29, 23007)(Chin, J.).

Plaintiff is an industrial-strength septic systems cleaning products company. Defendant is alleged to have done a number of shitty things, including allegations that

defendants illegally appropriated large amounts of material from for use on, including text, photographs, pictures, drawings, graphics, and other material. Plaintiffs submitted two Digital Millennium Copyright Act (“DMCA”) notices to defendants' web hosting companies, resulting in the shut-down of defendants' website, forcing them to host it overseas at a higher cost. Defendants argue that filing these notices violated the DMCA's prohibition against misrepresentation.

Decisions involving infringement of one web site by another are rare, so here is Judge Chin’s entire discussion of the issue, leaving out the statement of the legal principles:

Bio-Safe possesses a copyright registration for its website, entitling it to the presumption that its copyright is valid. Plaintiffs therefore meet the first element of their claim. As to the second element-“copying of constituent elements of the work that are original”-plaintiffs have demonstrated actual copying, but have failed to demonstrate a substantial similarity exists between Newtechbio's website and the protectible elements of Bio-Safe's website.

Moreover, although defendants admit to copying, albeit inadvertently, textual elements of plaintiffs' website, since the complaint was filed defendants have removed the copied portions from their website.

With respect to the substantial similarity prong, plaintiffs fail to establish that defendants' copying is illegal. Applying the “ordinary observer test,” with the Court assessing the two works' total concept and feel, there is no substantial similarity. A side-by-side comparison simply does not prompt an ordinary observer to regard the aesthetic appeal of the websites as the same. Rather, it is difficult to detect any similarities. The arrangement, photographs, and graphics on the websites are decidedly dissimilar. The textual elements that remain similar on the websites, including minor phrasing and terminology, are so far spaced throughout that they are not noticeable.

Link to KeyCite Notes Furthermore, this remaining similar text does not contain protectible elements. Terms such as “shock,” which plaintiffs argue are protectible are merely technical industry concepts that are widely used, as evidenced by their prevalence on industry websites, and not original or unique expressions of those concepts. Even if these phrases and terminology were entitled to legal protection, the copying is minimal and trivial, rendering it de minimis and not actionable. Accordingly, plaintiffs have failed to demonstrate they will likely prevail on their copyright claim.


Anonymous said...

This decision is not permanent since the case is ongoing. The judges initial findings of fact alot of times change. The truth of the matter remains that the defendants copied and that copying was done illegally and criminally. Stay tuned for the end of the story here. Justice will prevail.

Anonymous said...

It’s amazing how the Honorable Judge Chin saw right through what appears to be the plaintiff’s frivolous accusations concocted to destroy the competition - completely unsubstantiated and frankly, a waste of the courts time. After reviewing both websites involved, I agree with the judge’s finding that the plaintiff does not hold sole claim to nondistintive common text and phrasing found on both sites, the website do appear to be, in fact, distinctively different. The DMCA enjoinment is suitable and agreed, may become a useful tool. Having the privilege of acquainting with Judge Chin, I can attest that he is extremely honorable and just, and does not appear to tolerate vindictive perjury often found in frivolous cases as shown in “Securities and Exchange Commission v. Teresa V. Fernandez” where Judge Chin recently sentenced Mrs. Fernandez to 41 months in prison for abusing the system. Interpretation aside, verifiably false statements, or perjury, carry up to a 5 year sentence per count and if the defense can overwhelmingly prove sworn statements made by the plaintiff to be perjurous, perhaps the court will set yet another precedent useful as a detriment to attempt to usurp the system.

Anonymous said...

Indeed, decisions involving infringement web site content are rare.

I came across this while researching the issue below, which I hope someone could shed some light on.

The scenario is one involving a company whose primary source of "leads" is through SEO generated traffic to their website.

Over a period of 4 years, this company was able to obtain a PageRank of 8, which placed them in the top three search results for common search terms used by potential purchasers.

In a 2 week period, their PageRank dropped down to zero, which placed them out of the relevant search results causing a significant drop in sales.

At the same time the PageRank dropped, significant portions of text from the company's web site started to appear copied, verbatim, on the web sites of several competitors.

Even after the company was able to convince the competitors to take down the duplicated content, their PageRank was still in the toilet.

Apparently (and I'm not sure exactly how and why), Google's index had credited the competitors web site as the originator of the copied content and penalized the company's web site as a duplicator.

As a result, the company's web site PageRank was still zero despite notifying Google of what had occurred.

I was wondering if you have come across a reported case involving a damages claim (e.g. unfair competition) for acts (e.g. content-copying) causing a drop in a web site's PageRank (or similar ranking system) resulting in a significant drop in search results leading to lost profits. (Lest it go unsaid, any claims would be between competitors--not Google).

To be sure, proving a nexus between the duplicated content and drop in PageRank would be difficult, especially given the secrecy of Google's PageRank algothrim.

However, assuming arguendo that such a nexus can be reasonably made, do you think Section 301 would preclude a state court action based on non-copyright claims? Are there any lessons to be learned from Chicago Board of Options Exchange v. ISE (No. 06 C 6852, N.D. Ill.) on how to "artfully" craft claims so as not to implicate copyright preemption?