Web Developers & Coders Rejoice! HTML is Copyrightable, Says Court

A recent court decision should come as welcome news to web developers and coders of all stripes because it clarifies the copyrightability of web-related assets. The district court in Media.net Advertising FZ-LLC v. Netseer Inc., 2016 U.S. Dist. LEXIS 3784 (N.D. Cal.), recently ruled that HTML used to create the custom search results page of an online advertising platform is copyrightable.

The plaintiff is an online contextual-advertising service provider that brought a copyright infringement suit against a competitor for allegedly copying its HTML, and supported its claims by pointing to guidance in the latest Compendium of U.S. Copyright Office Practices. According to the Compendium, a website’s layout or "look and feel" is not copyrightable, but its HTML might be. The defendant argued that the HTML was solely based on Cascading Style Sheets (CSS), which the Copyright Office refuses to register because CSS represents uncopyrightable procedures, processes, and methods of operation, and therefore the plaintiff's copyright registrations were invalid.

The court reasoned that because “there are multiple ways of writing the HTML code to produce the same ultimate appearance of the webpage,” the fact that the HTML produced a web page did not prevent valid registration, and held that portions of the plaintiff’s HTML code met the requisite minimal level of creativity for protection. However, the court found a curable defect in the complaint and granted the defendant’s motion to dismiss.

Because HTML is the standard language used for designing websites, the ruling conceivably could apply outside the realm of online advertising to other web assets, so web developers and those coding with HTML should look at the decision both offensively and defensively. On offense, the decision makes copyrighting HTML more likely, but defensively, developers need to be on guard against copying other's HTML as the case demonstrates. Although the motion to dismiss was granted, the plaintiff can amend the complaint so this case is most likely not going away-stay tuned.

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