February 16, 2016
Intellectual Property Alert
Author(s): Kristin Jamberdino
In light of a recent decision in California regarding the copyrightability of HTML code, website developers must remain vigilant in order to protect their original expressions without infringing on the rights of other developers. This alert discusses what businesses need to know.
In a landmark decision, a federal district court in California has upheld a previously untested Copyright Office guideline that allowed for the copyrightability of HTML code.  The court also found that plaintiff’s HTML code, which incorporated CSS code, was sufficiently creative to defeat defendant’s motion for summary judgment on the basis that plaintiff failed to possess any copyrightable work.
The Media.net decision, issued by Judge Edward M. Chen of the U.S. District Court for the Northern District of California, was the first reported instance of a court citing the HTML code provision of the Copyright Office’s Compendium of U.S. Copyright Office Practices, and represented continuing deference within the federal judiciary to the ability of the Copyright Office to extend copyright protection to new forms of expression.
The Compendium is a comprehensive manual that “provides expert guidance to copyright applicants, practitioners, scholars, the courts, and members of the general public regarding institutional practices and related principles of law.”  In late 2014, the Copyright Office released the third edition of the Compendium, which was the first major revision in over 20 years. Between the release of the second and third editions, technological advances – including the rise of the Internet as a primary means of content delivery – augmented the means in which creative works find expression.
To keep pace with changing technology, the Compendium’s third edition endeavors to define what nontraditional means of expression could be protected under copyright law. Accordingly, the Copyright Office devoted an entire chapter to the “policies and procedures for the . . . registration of copyrightable content contained on websites.”  Importantly, the Copyright Office distinguished between HTML and CSS code, the former possibly containing copyrightable material,  but the latter excluded from protection as an uncopyrightable “method of formatting.”
The parties in the Media.net litigation were competing contextual-advertising providers. Essentially, their users have the ability to embed custom-created “ad units” on their websites. When a visitor to the website clicks on the ad unit, the visitor is taken to a search results page that displays relevant advertisements.  Media.net, a leading provider of these services, registered for copyright two versions of its search results page, claiming copyright over the HTML code and text. Media.net sued NetSeer for, among other things, copyright infringement, alleging NetSeer had copied the HTML code, including arbitrarily named variables and portions of the code that had no function, and then used the allegedly misappropriated code to create its own search results page and marketed itself as a lower-cost alternative to Media.net.
On NetSeer’s motion for summary judgment,  the court was first confronted with the issue of whether the Copyright Office policy of accepting HTML code as potentially copyrightable subject matter was entitled to deference. The Ninth Circuit, as well as many other circuit courts, including the Second Circuit, has long held that the Copyright Office’s interpretation of copyright law is entitled to a lower level of deference under the Skidmore doctrine.  In Skidmore, the amount of deference a court affords an agency interpretation depends upon “the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” The court found the Copyright Office’s interpretation of the law with regard to the copyrightability of HTML code to be reasonable and held that Media.net’s registrations were presumed to be valid. 
Seeking to overcome that presumption, NetSeer argued that the HTML code claimed under the registrations consisted solely of uncopyrightable CSS. Media.net responded that the HTML code contained expressive content, particularly the use of arbitrary names to refer to CSS class styles. The court proceeded to parse the code to determine whether it contained sufficient creativity to entitle it to copyright protection. In finding sufficient creativity, the court focused on the creativity required to name class styles and the use of non-functioning comments. Noting that the required amount of creativity “is ‘extremely low,’” the court held that choosing the names of classes “requires a certain amount of creativity” and that a comment in HTML code also “requires some creative thinking on the part of the developer, as a comment may contain notations or thoughts for others to use.” 
Because the court found Media.net’s copyright registrations to be valid and to contain copyrightable subject matter, NetSeer’s motion for summary judgment was denied. However, the court did grant NetSeer’s motion to dismiss, holding that the complaint failed to allege how NetSeer had copied the copyrighted material at issue. Plaintiff was granted leave to amend its complaint to identify the allegedly infringing code, and to allege facts concerning NetSeer’s access to Media.net’s HTML code.
Although the Copyright Office’s decision to allow for the registration of HTML code has received a judicial stamp of approval, many questions remain, and website developers must remain vigilant to protect their original expression without infringing on the rights of other developers. First, assuming the code meets Copyright Office requirements, developers should register their HTML code with the Copyright Office when they are in possession of a final (or near-final) work. The process is straightforward, electronic, and relatively cheap. Second, developers should document the source for any third-party code and determine whether permission to use the code is required. Because the Copyright Law protects independent creation, not necessarily uniqueness of expression, two website developers could, theoretically, create the exact same HTML code.
Finally, the court held as a valid copyright HTML code that incorporated CSS directly within it, as opposed to using external CSS files. It remains to be seen whether the Copyright Office, or courts, will have to engage in analysis to determine separability, akin to the standard for separating artistic elements from functional elements under the useful articles doctrine. “Separability” as a concept has spurred myriad tests, spawned countless lawsuits, and continues to vex the copyright bar and judiciary. Needless to say, Judge Chen’s decision represents the first, but far from the last, word on the copyrightability of HTML code.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.