Is It Legal to Use Someone Else’s Code?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 13, 2016

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HTML is Copyrightable, CSS is Not

The laws surrounding copyright for online works can be a little confusing. A recent court case, Media.net Advertising FZ-LLC v. Netseer Inc., highlights the complexity.

Media.net Advertising sued its competitor Netseer for copyright infringement, claiming that Netseer copied its HTML used to create a custom search results page for use in its own custom online advertising product.

Netseer managed to get the lawsuit tossed out by claiming that Media.net Advertising’s HTML consisted solely of Cascading Style Sheets (CSS) which are not copyrightable.

Exactly what is and what isn’t copyrightable in online publishing can be a little tricky. The most complete guide comes for the Copyright Office, the  Compendium of U.S. Copyright Office Practices (Third Edition). Some guidelines follow.

Content

The actual content on web pages — words, images, videos, sound recording — is protected by copyright as is any other “creative work.”

“Look and Feel”

The “look and feel” of a website is not copyrighted. People can copy your layout, color scheme, etc. One exception is if the “look and feel” qualifies as “trade dress” under the Lanham Act, in which case it could be protected in the same manner that trademarks are protected.

“Trade dress” describe  the way a product looks or how it’s packaged to indicate the source of the product to consumers.

HTML and CSS

HTML and CSS fall under the copyright rules for software. As a general rule, executable code is copyrightable; “functional aspects” of a program, such as the algorithm, formatting, functions, etc., are NOT copyrightable.

HTML is “executable code.” When your computer receives HTML it acts on that code and creates a web page for you to see.

CSS is NOT directly copyrightable. If you send CSS by itself to your computer, nothing happens. CSS is a style sheet that is used by HTML to present the format the text will appear in.

The Copyright Office’s Compendium specifically states:

Style sheet languages, such as Cascading Style Sheets, are merely methods of formatting and laying out the organization of documents written in a markup language, such as HTML. Because procedures, processes, and methods of operation are not copyrightable, the Office generally will refuse to register claims based solely on CSS.

Here’s a simple illustration of why CSS can’t be copyrighted: a particular piece of CSS code would call a certain color to be displayed. If CSS could be copyrighted, no one else could use that color. That would be an absurd result.

A specific HTML implementation of a website is protected by copyright. However, different HTML code can be used to come up with the same display. As long as the HTML is different, there’s no copyright infringement.

In the Media.net Advertising case, the court dismissed the case because Media.net didn’t explain what portions of HTML the defendant infringed, or how the defendant had accessed their HTML.

Conclusion

A few points to remember:

  • “Look and feel” is not copyrightable, but HTML is. When creating a website that looks similar to another website it’s important to make sure you’re not copying their HTML.
  • CSS isn’t copyrightable.
  • It’s a good idea to register your copyrights, including your HTML.

(Social Media Photo Credit: “Code” by wetwebwork is licensed under CC BY-SA 2.0.) 

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