Copyright Aid

Hello,

received an email stating that I copied their website layout and some of the textual content and if it's not removed they will report the website to Google and then a DMCA complaint.

The background to the website and situation is that we do tourist services, so quite a niche market and companies of 1 or 2 people, homegrown in the area. Therefore, websites are all tailored to a kind and leaning towards those services provided.

We've had a few domain names, but stuck with the core content, with tweaks here and there over time, 5 or 6 years.
Initially, I phoned them to clarify the issue, then the email arrived.

One of the points that I'm being accused of is stealing the method by which the services are displayed, which has been a mainstay of our home page for the last 4 years. The person only created their website after ours. The block list on the page displays the type of services that we offer with an image and text for each service.

Also, because the companies are run by people with similar backgrounds the About text is similar, but does exist in the files from 2013.

My question is if I have evidence from 2013 of the website code, with all the source files corresponding to that date and time, is that enough evidence to debunk their claim?

Thank you for any help.

Hi Barton,

You seem to be implying, without actually saying so, that you did not at anytime copy their site. If this is the case then you can rebut the allegation on the grounds of independent creation. And to that extent having evidence of the existence of your source code from 2014 may indeed be helpful.

What is at issue here involves the so-called idea/expression dichotomy; ideas alone cannot be protected by copyright, only the particular way an idea is expressed is potentially protectable.

Copying the overall look and feel of something, such as the appearance or layout of a website is very difficult ground on which to claim copyright infringement, especially if the actual code which produces site 'A' differs considerably from the code for site 'B'. Within a website the code is protectable as software only to the extent that a fairly substantial amount would have to be compared and found to be the same, since there are limited ways most code, such as HTML for instance, can be expressed to obtain a specific desired result. Furthermore using code-authoring software such as Adobe GoLive or Dreamweaver etc will inevitably produce very similar code, if two web designers have a similar idea they wish to produce. And where the code is written from scratch 'by hand' for instance, say your site used a good deal of javascript while the other site was mainly HTML and CSS, but they both looked similar on screen, then it is unlikely that a claim could or would succeed. The text content would be treated as a literary work and is likely to be protected as long as it is deemed 'original', ie it originates from the mind of the author and is not copied from elsewhere. However if the two texts are merely similar and cover the same kind of subject matter which can only be expressed in a limited number of ways, then again it would be hard to uphold a claim, when sheer coincidence is an equally likely explanation for the similarity. To quote from a 2014 judgment by His Honour Judge Hacon in the Intellectual Property Enterprise Court

The simple point is that the stronger the prima facie case of copying which can be inferred from the similarities, the more compelling the defendant's evidence of independent design must be to rebut that inference. Where a prima facie inference of copying can be made out but is weak, less of a rebuttal will be needed to avoid the conclusion that there was copying.

Source: paragraph 11 John Kaldor Fabricmaker UK Ltd v Lee Ann Fashions Ltd [2014] EWHC 3779 (IPEC)

But even if a court accepts that the most likely explanation for the similarity is copying, the claimant still needs to establish that what has been copied is a substantail part of his work. This means that the copied part is at the heart or essence of that work and not just a peripheral or relatively unimportant element.

So since you appear to have evidence that your website was in existence in much the same form as it today, long before the other site was launched, you should be able to refute their claim, and indeed it could be inferred that they might have copied your site, given the timings.

Incidentally, although a DMCA notice might be sufficient to persuade your hosting company, initially, to take your site down, despite your apparently strong defence, I very much doubt if Google would take any action, because under UK law they are not liable for any infringement by virtue of having listed your site, and they would usually only react to an order of a court over a claim such as this. Of course if your site is taken down using the DMCA, you should immediately issue a counter-notice to get it restored.

Good afternoon,

it's such a worrying situation as a Webmaster to have such claims thrust into the limelight, especially after so many decades in the software and internet development industry and have your values questioned.

Thank you so much for putting my mind at rest.