I?ve frequently recommended that Web sites use a prominent ?terms and conditions? section to set forth the site?s general policies and to reduce the likelihood of drawing a lawsuit. Indeed, explaining the site?s policies on use, answering frequently asked questions, providing navigational tips, and disclosing data collection practices now appear on most Web sites, including this one.
There are always questions about how well this practice works: Is it useful to visitors? Does it protect the site? Where can I get a good set of terms and conditions? Can I copy the ideas from someone else?s site without being sued? And, so on.
So you think no one will file suit over terms and conditions statements or frequently asked questions that you lifted from another Web site? Well, guess again.
On January 22, 2002, Mist-On Systems, Inc. sued Gilley?s European Tan Spa over the frequently asked questions (FAQs) section on the Gilley?s Web site. The complaint, filed in the Western District of Wisconsin, alleged claims of copyright violations and unfair competition claims under Wisconsin common law as well as the U.S. Trademark Act (also known as the Lanham Act).
In simple terms, Mist-On claimed that Gilley?s copied the FAQs section from Mist-On?s Web site. But, like anything else involving the law, there?s a twist: Gilley?s staff members didn?t just ?cut and paste? Mist-On?s FAQs, they appeared to have tweaked them -- perhaps, just enough -- in the process.
A Comparison of The Sites: Just the FAQs
On its Web site, Mist-On Systems advertises and sells a sunless tanning solution -- spray it on, get a tan. According to the FAQs, ?a very fine mist of sunless tanning solution covers your body in seconds. A bronzer gives you immediate golden-brown color, and DHA (dyhydroxyacetone) gives you a long-lasting tan.?
Under the heading, ?Mist-On Tan Frequently Asked Questions,? Mist-On sets out nineteen separate questions about the product in question/answer format. The questions innocuously relate to the product and its risks, such as whether or not it will discolor clothing -- it can, use with care.
Gilley?s European Tan Spa sells a similar sunless tanning product, utilizing DHA which, according to Gilley?s FAQs, ?is a colorless sugar that darkens the skin through a chemical reaction with the natural proteins in the body.? In Gilley?s ?FAQ?s Sunless Express Spray Spa? section, it provides similar questions and answers in sixteen bullet items. (It, too, warns of discoloring your clothing, and answers the critical question, ?will I smell after the session??)
Are the FAQs Similar?
When you compare other aspects of the two sites, there is very little similarity in terms of content, format, style, colors, artwork, photographs, etc. So, Mist-On?s suit focused on whether or not Gilley?s FAQs infringe on Mist-On?s copyrighted FAQs. Here is what the court said:
In the opinion, (available here) District Court Judge Barbara B. Crabb followed the well-defined rules that copyright law protects expression, not ideas; and elements of an original work are not protected when the ?common idea is only capable of expression in more or less stereotyped form.?
From there, she noted that ?a business cannot copyright a Frequently Asked Questions page as such or copyright words or phrases commonly used to assemble any given Frequently Asked Questions page.? Can you predict who won?
She then made a side-by-side comparison of the two FAQ sections, ultimately concluding that despite their similarities, there were sufficient differences such that ?a reasonable person could not conclude that defendants? Web page violates plaintiff?s copyright by unlawfully appropriating material of substance and value. The similarities between the two pages do not arise from protected expression. Rather, they arise from the parties? use of a common format to address topics common to the subject of tanning booths.?
In particular, the court pointed out that the questions and answers were in a different order; contained different phrasing; and, so on. In the words of the court, ?to get the two Web pages to ?match up,? plaintiff had to dissect defendant?s answers into separate parts and rearrange them into an order that is different from that on defendant?s actual Web page. This itself is enough to defeat plaintiff?s contention that defendant?s Frequently Asked Questions and Answers are in the ?same order? as plaintiff?s.
So, after rejecting Mist-On?s arguments, the Court granted summary judgment for Gilley?s. It remains to be seen whether Mist-On will appeal the decision.
Although of limited precedential value since it comes from a trial court in Wisconsin, the opinion does offer guidance in the wilds of the Internet.
First, copying a question-and-answer format technique is of itself, not an act of copyright infringement. We can all breathe a collective sigh of relief. While this may be obvious, until the court spoke no one could predict with certainty how the court might decide this issue.
Second, so long as the questions and answers are not verbatim or obviously copied when compared side-by-side, the court will not reward a plaintiff in a copyright infringement case on these facts. Remember, copyright grants a monopoly in expression, not ideas.
Third, is it advisable to file suit when another site steals some of your FAQ content? At least this commentator thinks the answer is no. See, Eric Sinrod, ?E-Legal: Court Holds Internet FAQ Pages Not Subject to Copyright Protection? (available at Law.com). Sinrod suggests, ?the decision to assert copyright infringement for Internet content such as an FAQ page might not have been wise, especially when there truly are distinctions between the Web pages at issue.?
OK, maybe we could quibble over whether the FAQs in these two sites are sufficiently similar to justify copyright litigation. But, I have no doubt that there are many examples where a portion of a site?s content has been copied and used by another site. Really, the aggrieved owner doesn?t have a lot of choice but to file suit, particularly if it involves infringement by a competitor.
The court seems to be telling us that ?cut and paste? is bad, but a good paraphrase of another site?s terms and conditions and FAQs might fly under the radar -- just make sure it doesn?t follow the same order, or use the identical word choice.
At this point, I would caution anyone who thinks that merely paraphrasing someone else?s FAQs is acceptable -- it isn?t. But, when making a side-by-side comparison of two sites? content, the question of what a reasonable person would conclude is what is important. And the hypothetical reasonable person may be very different in Wisconsin than in Southern California or New York.
Michael S. Overing teaches Internet Law at the USC Annenberg School for Communication. He is a practicing attorney in Los Angeles County, California. He frequently assists individuals and businesses with Internet and media-related legal issues.
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