The Software IP Report

Are Webpages “Published” Under U.S. Copyright Law?

By Charles Bieneman

Categories: Copyright, The Software IP Report

Allegedly infringed webpages were held not to be “publications” under U.S. copyright law.  Rogers v. The Better Business Bureau of Metropolitan Houston, Inc., No. H-10-3741 (Aug. 15, 2012).  The plaintiff had described the webpages as unpublished when applying for copyright registrations.  The defendant argued that the webpages were published, and that the copyright registrations were therefore invalid.  Although acknowledging a split in authority concerning whether web pages are publications, the court rejected the defendant’s argument, and denied the defendant’s motion for partial summary judgment.

The plaintiff had contracted with the defendant to create webpages for its individual member businesses.  Further, the plaintiff agreed “to create a website at the uniform resource locator (‘URL’) for hosting the webpages, to license the URL to Defendant, and to maintain the URL and webpages.”

After the defendant exercised its right to terminate the parties’ agreement, and before bringing the lawsuit, the plaintiff “applied for a certificate of copyright registration for as an unpublished, nondramatic literary work,” which registration subsequently issued.  The plaintiff later applied to the Copyright Office for a “supplementary registration to add the words ‘Web Page Collection’ to the title of the work and to add information about the nature of authorship and the registration of the collection as unpublished.”

The court began its analysis with the premise that a copyright registration carries with it a presumption of validity.  This presumption may be overcome by a showing of fraud, or that a work is unoriginal.  Here, the defendant argued that the plaintiff’s registrations were invalid because the plaintiff had improperly described its works as unpublished.

The court agreed with the defendant that this was not a case to be referred to the Copyright Office for advice under 17 U.S.C. § 411(b)(2) because the plaintiff had supplied inaccurate information.  Instead, the question was whether the plaintiff had made a legal error in describing its webpages as unpublished.

Although the cases considering whether webpages were published were divided, the court thought that “two legal constructs stand in the way of summary judgment on the validity of Plaintiff’s copyright, the prima facie presumption [of validity] and deference to the Copyright Office.”  Even though the current trend favored finding that documents on the Internet were published, “the reasons for finding publication varies from case to case and is fact dependent.”  Here, the Copyright Office had decided to issue the plaintiff’s supplementary registration for an unpublished collection, which the court found to be persuasive.

Further, the fact that the plaintiff had licensed the webpages to the defendant did not alter the court’s conclusion that the webpages were unpublished.  This case differed from cases in which webpages had been licensed to a party that intended to produce and sell them.  The defendant made no clear showing that public distribution had occurred.  Therefore, the defendant had “failed to meet its burden to rebut the presumption of validity as to Plaintiff’s copyright.”