Is a Website “Published” for Copyright Law Purposes?–Rogers v. BBB of Houston

By Jake McGowan

Rogers v. Better Business Bureau of Metropolitan Houston, H-10-3741 (Aug. 15, 2012)

"source code ON PAPER" by Tim Lucas

“source code ON PAPER” by Tim Lucas

In the realm of copyright law, evolving technological perceptions have led to doctrinal questions that have the potential to determine the outcome of a case. One of these questions is whether posting content to a website amounts to “publishing” the material within the meaning of the Copyright Act.

A district court in Texas considered this question recently in Rogers v. Better Business Bureau of Metropolitan Houston, but hesitated to take a firm stance.

Background

In December 2001, the Better Business Bureau of Metropolitan Houston (“BBB”) contracted with Rogers to create websites for its member businesses. Under the terms, Rogers agreed to create individual websites for the member businesses, and host them on a website he created called “reliabilitymall.com.” The site is currently down for maintenance, but thanks to Internet Archive’s Wayback Machine, you can get a glimpse of what it looked like circa 2004, in all its clip-art glory.

Nearly a decade later, BBB exercised its right to terminate the contract with Rogers and started searching for a new web developer. In response, Rogers applied for a certificate of copyright registration for the Reliability Mall website collection as an unpublished, nondramatic literary work. The Copyright Office granted his application and issued the certificate on January 31, 2010.

Rogers filed this lawsuit in October 2010, alleging that BBB directed its new web developer to pull content from Rogers’ websites (mainly the source code). BBB moved for summary judgment on Rogers’s copyright infringement claims, arguing that Roger’s copyright was invalid since he represented the websites as “unpublished.”

BBB Failed to Overcome the Presumption of Copyright Validity

The Court denied BBB’s partial summary judgment motion, citing a failure to overcome the copyright’s “presumption of validity.” Because Rogers obtained the certificate of registration, the burden shifted to BBB to prove that the registration was invalid. Usually this would mean proving fraud or unoriginality, but neither of those meshed with the facts of the case; BBB instead argued that Rogers’s decision to register the sites as “unpublished” was a “legal error regarding the entire basis for [his] application.”

In support of its “legal error” argument, BBB argued that the sites were published because Rogers uploaded the webpages to the Internet. The district court did not sign off on this argument.

Uploading Webpages to the Internet Does Not Constitute Publication as a Matter of Copyright Law

The court notes that the Copyright Act does not delineate when a work attains “published” status, but defines “publication” as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending” (emphasis added).

This is where we start to veer off the rails. A public display of a work does not of itself constitute publication, and neither the Copyright Act nor its regulations explain how the statutory definition applies to Internet works.

Noting a lack of relevant case law in the Fifth Circuit, the court looked to the nonbinding case Getaped.com, Inc. v. Cangemi, 188 F.Supp.2d 398 (S.D.N.Y. 2002), where a district court in New York held that a website was published because a user “acquires the ability to make a copy of that webpage . . . indistinguishable in every part from the original.”

But the court goes on to emphasize the unsettled nature of the question, citing several district court cases from around the country that differed in their outcomes and accompanying rationales. This tangled mess of precedent ended up being the death knell for BBB’s partial summary judgment motion:

Absent binding law or even a clear consensus in case law directly related to the posting of a website online, the court is not inclined to negate the presumption of validity by finding, as a matter of law, that Plaintiff distributed copies of the websites when he uploaded them to the Internet.”

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