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Court Finds Website HTML Code Copyrightable Subject Matter

The U.S. District Court, for the Northern District of California, held that website HTML code is copyrightable subject matter and did not follow the U.S. Copyright Office’s opinion that HTML code and the Cascading Style Sheets (“CSS”) is not subject to a copyright claim. Advertising FZ_LLC v. Netseer, Inc., Case No.  14-cv-3883 (USDC, ND CA January 12, 2016) (Available Here).

Plaintiff is a leading provider of online contextual-advertising services and offers its customers a website-based advertisement creation platform (the “Platform”) which allows its users to create custom advertisements. Website publishers using the Platform can place a ad unit on their websites so that when a website visitor clicks on the ad unit, the visitor is taken to a “search-results page” which displays relevant advertisements. For example, if a website visitor clicked on a keyword relating to travel, the search results page could show advertisements promoting deals on hotel rooms.  Plaintiff obtained a copyright registration for its Original Results Page and for its Revised Results Page.

Defendant Netseer is a competing contextual-advertising provider. Defendant also provides advertising units that its customers can place on their websites.   Like Plaintiffs Platform, when a user clicks on Defendants advertising unit. the user is directed to a search-results page that offers relevant advertisements. Plaintiff alleges Defendant directly copied Plaintiffs hypertext markup language (“HTML”) code, including arbitrarily-named variables and portions of the code that have no function, and used such code to create Defendants own search results page.

Netseer moved to dismiss’s complaint under Rule 12(b)(6) motion.  Courts “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party,” Manzarek v. St. Paul Fire & Marina Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) and courts may dismiss a claim “only if ii appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011).  Further, courts should grant the plaintiff leave to amend “‘if ii appears at all possible that the plaintiff can correct the defect.”‘ Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013)(quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)(en banc).

The Ninth Circuit has held that the Copyright Office’s decisions and opinions are not entitled to the level of deference afforded under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  Inhale, Inc. v. Starbuzz Tobacco. Inc., 755 F.3d 1038, 1041 (9th Cir. 2014), as amended July 9, 2014, cert denied, 135 S. Ct. 758 (2014) (“Because Chevron deference does not apply to internal agency manuals or opinion letters, we defer to the Copyright Office’s views expressed in such materials “only to the extent that those interpretations have the ‘power to persuade.”‘). Instead, the Ninth Circuit has long held that the Copyright Office’s interpretations of copyright law are entitled to the lower level of deference applicable under Skidmore v. Swill & Co., 323 U.S. 134, 140 (1944); United States v. Mead Corp., 533 U.S. 218, 227 (2001)(“[A]gencies charged with applying a statute necessarily make all sorts of interpretive choices, and while not all of those choices bind judges to follow them, they certainly may influence courts facing questions the agencies have already answered.”). Under Skidmore, the degree to which a court defers to an agency’s opinion or interpretation ”will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with eartier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore 323 U.S. at 140; see Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (holding agency manuals are entitled to Skidmore deference, “but only to the extent that those interpretations have the power to persuade.”).

In order to prevail on its copyright infringement claims, Plaintiff is required to prove “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’n, 499 U.S. at 361. Defendant Netseer sought summary judgment on the basis that Plaintiff’s copyright registrations do not contain copyrightable material.

Plaintiff acknowledges that the look and feel of its search results website page is not subject to copyright protection.  However, has a copyright registration for its Original Results Page and for its Revised Results Page.  “A copyright registration is ‘prima facie evidence of the validity of the copyright and the facts stated in the certificate” and creates a rebuttable presumption of validity. United Fabrics lnt’l, Inc. v. C & J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011)(quoting 17 U.S.C. § 410(c)). The party disputing validity “must simply offer some evidence or proof to dispute or deny the plaintiffs prima facie case of infringement.” Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1144 (9th Cir. 2003). If that party successfully rebuts the presumption, the burden shifts back to the plaintiff to demonstrate a valid copyright.

Specifically, Defendant asserts Plaintiffs HTML code consists solely of uncopyrightable Cascading Style Sheets (“CSS”), which renders Plaintiffs copyright registrations invalid.

In response, Plaintiff argues its copyright registrations are valid because its HTML code is a “literary work” under section 102(a) of the Copyright Act. Opp’n at 11; see 17 U.S.C. § 102(a)(1) (“Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression …. Works of authorship include … literary works[.]”). Plaintiff offers expert Mitchell, a computer science professor at Stanford University, who opines that the code “contain[s] a substantial amount of expressive conduct.” In particular, he points to “names of class styles” in CSS, since a programmer can name a “class style” however he so desires. Plaintiff essentially argues that this infuses the HTML code with creativity sufficient to establish copyrightability.

HTML code “is the standard markup language used in the design of websites” and “establishes the format and layout of text and graphics when a user views a website by instructing the user’s browser to present material in a specified manner.” Copyright Compendium (Third)§1002.4. HTML is contained between the start tag and closing tag . At the hearing, Defendant’s expert Shelton explained that HTML originally had two functions: (1) to present content and (2) to include information about how to present that content, such as font, size, color, and margins. In 1996, however, web developers began using CSS to separate a webpage’s content from its presentation. CSS thus controls the presentation of content of a webpage – that is, the look and feel to the user – without containing content. CSS are “a method of presenting structured documents a used to format and layout the organization and a uniform presentation of webpages in a written markup language, such as HTML.” Copyright Compendium (Third) §1002.5. CSS begins with the opening tag and ends with the tag.  The Court further discusses “style” and “class” and notes that CSS styles are inherited into a web page.

There are different ways to build CSS into HTML.  CSS are not typically contained in the same document as the HTML code but instead may be stored in a different file. The CSS is an external file which is imported into the HTML file, using an external style sheet that is imported into the webpage. Consequently, there is only HTML and content within the web pages; the presentation of the content in the CSS is contained elsewhere. If there is no style defined (pursuant to the CSS or in the HTML code itself), the web browser uses its default style settings.  Developers may also insert “comments” in both HTML and CSS for other developers to see.

“The sine qua non of copyright is originality.” Feist Publ’n Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 345 (1991). Originality means that (1) the author independently created the work, and (2) the work “possesses at least some minimal degree of creativity.” Id. at 345. The required amount of creativity is “extremely low; even a slight amount will suffice.” Id. Because of this low standard, ” [t]he vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious’ it might be.” Ets-Hokin v. Skyy Spirits Inc., 225 F.3d 1068, 1076 (9th Cir. 2000)(quoting Feist Publ’n 499 U.S. at 345).

“The Copyright Office continually engages in the drawing of lines between that which may be and that which may not be copyrighted.” Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 994 (2d Cir. 1980). The Copyright Office has drawn such a line here. The Office will register HTML code as a literary work if it was created by a human being and if it “contain[s] a sufficient amount of creative expression.” Copyright Compendium (Third) §1006.1(A). Evidently, the fact that an HTML code produces a webpage, the look and feel of which is not subject to copyright protection, does not preclude its registration.  In contrast, “[b]ecause procedures, processes, and methods of operation are not copyrightable, the Office generally will refuse to register claims based solely on CSS.” Copyright Compendium (Third) §1007.4.

In the present case, the Court found that portions of’s HTML code meet the requisite level of creativity to be copyrightable. Specifically, Plaintiffs HTML code employs names of classes, which provides the opportunity for a developer to express creativity.  The Expert indicated that “.inset” is an example of a class name and the programmer could use any name for the class – such as “xyz”.    Also, Plaintiff’s HTML code also contains comments.  Like class names, a developer can write anything in a comment.  Further, the choice of class name has a consequence for both the HTML code and the CSS. When the developer seeks to refer to a class in the HTML document, the names must match: In other words, when the developer incorporates the class into the HTML, the developer must use the name that he gave the class in the CSS in the HTML The developer cannot build a style into its HTML code without referencing the class name that was established in the CSS. In this way, CSS and the HTML are so inextricably linked that it is impossible to evaluate one without the other.  Accordingly, the Court found that Plaintiff’s copyright registrations contain copyrightable subject matter and are valid.  However, the Court granted Defendant’s motion for more definite statement and required Plaintiff to list the copyrighted material and the alleged infringing material.

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