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 biosafeone.com for use on newtechbio.com, 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.