If Something’s on the Internet Does That Mean it’s Widely Disseminated?
by Jerry Glover
October 4, 2017
A frequent issue in copyright infringement litigation is whether the defendant copied the original elements of plaintiff’s work. One way to answer that question is determine whether the defendant had access to plaintiff’s work. After all, how can you “copy” if you’ve never had an opportunity to even see the plaintiff’s material? But evidence of direct copying is seldom available (e.g., “I walked into the room and there was the defendant copying my book word for word!”). Therefore, plaintiffs present evidence of “indirect” means to prove access. One of these means requires the plaintiff to show that the plaintiff’s copyrighted material received widespread dissemination. Consequently, the argument goes the plaintiff, the defendant is assumed to have seen it/heard it/etc. In the context of our digital world, does this mean that once the plaintiff uploads the material to an Internet site that it is automatically assumed to have been widely disseminated?
The U.S. Court of Appeals for the Seventh Circuit (which includes Illinois) had just that question presented to it recently. Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093 (7th Cir. 2017). In this case, Design Basics (which the court called a copyright “troll”) created designs for modest single-family homes. The court claimed that Design trawled the Internet for home designs it believed were substantially similar to its own. It would then file a lawsuit against the design copyright holder and hope that by simply filing suit the copyright owner would settle. The court noted that Design had participated in over 100 such federal lawsuits.
Design sued Lexington for just such a home design “infringement” claiming Lexington infringed four of Design’s home plans. Design offered little evidence to show that Lexington employees had ever seen Design’s plans let alone copied them. It only presented a declaration by its draftsman who concluded that the four Lexington plans were substantially similar to four of Design’s plans “in too many ways to have been the product of independent creation.” The draftsman added that Design’s plans had been “widely disseminated” via the firm’s website but he did not know when those Design plans had been first uploaded. Lexington presented evidence that there were many differences in the Design plans and the Lexington plans.
The Seventh Circuit noted that architectural works including building designs are protected by the U.S. Copyright Act (17 U.S.C. Sec. 101). The court ultimately agreed with the defendant that the designs in question were not substantially similar and that many of the design features for which the plaintiff claimed copyright protection were common in the family home building industry.
On the question of access the Design draftsman noted above admitted he did not know if Lexington had ever seen or possessed Design’s plans. As to whether posting the plans on Design’s website, the court noted that Design did not know if Lexington had ever accessed that site. Design offered no evidence concerning its web traffic, its web search rankings or the number of times that the plans had been viewed or downloaded. Merely having a website, the court ruled, was not enough to prove access.
The court noted that the U.S. Court of Appeals for the Fourth Circuit had rejected the argument that a mere Internet presence, without more, can satisfy the access requirement. Building Graphics, Inc. v. Lennar Corp., 708 F.3d 573 (4th Cir. 2013). Design attempted to distinguish this case by noting that the defendant was not aware of Building Graphics whereas in this case Lexington knew of Design’s business. The court stated, however, that simply knowing about the plaintiff’s business was not enough to infer that Lexington had accessed Design’s website and discovered the plans at issue in this case.
The court concluded by noting it was not trying to draw a “bright line” as to the quantity or quality of evidence in addition to a web site that a plaintiff had to offer to raise an issue of fact concerning access. The court said it was only holding that the existence of plaintiff’s copyrighted materials on the Internet cannot by itself justify an inference that the defendant accessed those materials.