Misplaced Blame In Copyright Infringement Claim Over Plagiarized Website

from the why-not-blame-the-actual-party? dept

Rose M. Welch alerts us to a court case where two law firms are fighting over a copied web page. There seems to be no question at all that the website of one law firm used almost an exact copy of some text from another law firm's website. So that would make it a pretty clear cut case. But... there's a bit of a complication. The law firm who used the copied content didn't realize the content was copied. It had hired an outside firm to build the website, and someone at that firm copied the content in creating the website. An arbiter ruled that the development firm was 2/3 responsible, but that the law firm was still 1/3 responsible, and the case has now shifted from arbitration to court. The problem is that it still seems difficult to see why the law firm should be liable at all. The folks they hired to create the website did the actual copying, and the law firm had no idea. So why should they take the blame?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Aug 12th, 2009 @ 9:01pm

    SODDI?

     

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  2.  
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    Anonymous Coward, Aug 12th, 2009 @ 9:32pm

    Let's say instead of a webpage it was code that was copied. If a company makes a profit off code that infringing, then it doesn't matter whether they were aware of the fact. By hiring a third party, you accept some responsibility of what that third party produces.

     

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  3.  
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    Anonymous Coward, Aug 12th, 2009 @ 9:47pm

    In the end, the law firm should pay 100% of the judgement amount, and then turn around and sue the developer. Splitting it like this is really just not fair to the infringed party.

     

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  4.  
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    Kazi, Aug 12th, 2009 @ 10:06pm

    I sort of thought when you do web development you show what kind of website you want. You can usually ask for a layout to be imitated.

    I'd be interesting to see who developed the websites for both companies. It's possible that the developers were the same. If that is the case then ... usually developers have templates and they recycle them. No reason to reinvent the wheel.

    Same with code libraries. No reason to rewrite them unless improving on them somehow. Literally, why recreate the wheel when it functions right?

     

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  5.  
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    Anonymous Coward, Aug 12th, 2009 @ 10:10pm

    Who cares ... they are lawyers :) If they are sueing each other they are not sueing us :) The only improvement to the decision is using my glock on all of them and then I would end up in court :)

     

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  6.  
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    Anonymous Coward, Aug 12th, 2009 @ 10:12pm

    Because ignorance is no excuse to law and a law firm, out of all firms, ought to know that.

     

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  7.  
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    Anonymous Coward, Aug 12th, 2009 @ 10:14pm

    Re:

    Actually this would be the correct legal action to take. Good point, why didn't I even think of this, it's so obvious.

     

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  8.  
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    Anonymous Coward, Aug 12th, 2009 @ 10:16pm

    Re:

    Well... because they're law firms and they can't wait for an excuse to sue people.

    As someone already pointed out, that's good because that means more resources and time suing each other and less resources suing us. Let them sue at each other until ... well, let them sue each other out of business.

     

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  9.  
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    tim, Aug 12th, 2009 @ 10:26pm

    since when

    since when do companies commision a website, and not be 100% specific and anal about how it looks and what goes on it? I work in web development, and we would get absolutely reamed if we just decided on someone else's content for them.

     

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  10.  
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    Anonymous Coward, Aug 12th, 2009 @ 11:04pm

    Re:

    That is so wrong it's not funny. If I buy a web site, I don't have to skim every single web page on the Web to see if the content is the same. Unless you are volunteering, by all means spend the next hundred years comparing the company's website to every other site online.

     

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  11.  
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    Felix Pleșoianu, Aug 12th, 2009 @ 11:05pm

    The folks they hired to create the website did the actual copying, and the law firm had no idea. So why should they take the blame?


    What do you mean, they had no idea? It's their friggin' website, they should know what goes on it. I figure the devs must have put some placeholder text in there, which they picked up on a similar website, and it was never removed/replaced because whoever was in charge from the law firm didn't do his job.

    This is much like paying someone to build you a house and then you go missing in action for a year or so. Then you suddenly show up and start yelling at the builder for not doing exactly what you had in mind. Never mind that you never told him just what you wanted. Never mind that you weren't there to make decisions in unexpected situations.

    Entitlement society, indeed. They want all the benefits of modern technology, but none of this pesky responsibility stuff like knowing what it entails. And because they're friggin' lawyers, they managed to shift fully 2/3 of the blame on the developers. Way to go.

    Yes, I'm a Web developer, too...

     

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  12.  
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    Felix Pleșoianu, Aug 12th, 2009 @ 11:10pm

    Re: Re:

    They didn't have to check out every other website out there. They just had to make sure that their own website displays their own content and nothing else. The moment they saw some random text in there, which wasn't uploaded by them, they should have removed or replaced it. But they probably never checked.

    Granted, the devs should have been more cautious and used Lorem Ipsum text instead. That would have been fun.

     

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  13.  
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    Tommy, Aug 13th, 2009 @ 1:03am

    Bad Law Firm

    A law firm didn't make a contract with the web contractor that expunged them from legal liability from the content. That is clearly a law firm that you DON'T want writing your contracts!

     

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  14.  
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    Rose M. Welch (profile), Aug 13th, 2009 @ 1:22am

    Re:

    So if you hire a security firm and one of the employees is nutso and he goes and kills a stalker, do you go to jail as well?

     

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  15.  
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    Rose M. Welch (profile), Aug 13th, 2009 @ 1:26am

    Re: Re: Re:

    Oddly enough, alot of professionals aren't any good at marketing. Or updating web sites. Huh, imagine that.

    So they hire a firm to develop the site and add the appropriate text, written in a pleasing format. The firm probably did check to make sure that the text was factual and satisfactory, but how would they know that the text had been copied verbatim from another non-competing firm in a different state? The design firm obviously knew (because it was verbatim) and they should be liable.

     

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  16.  
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    Rose M. Welch (profile), Aug 13th, 2009 @ 1:31am

    Re: since when

    I have never worked for a company that had a good idea of what it wanted. I design sites for small-medium local businesses and most of these people have no clue what they want. Or how to do much beyond check their e-mail, in fact. :)

    In the few cases where I get people who have color schemes and text all picked out, I sometimes have to talk them out of it into something better, or risk ending up on www.webpagesthatsuck.com.

    I specialize in complete site solutions, so we usually do come up with the marketing text and everything else, something including logo design and the whole works for new businesses. We probably could just wholesale nab text and code from other people, but we have more integrity than that. (Also, that's just boring.)

     

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  17.  
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    Richard, Aug 13th, 2009 @ 1:47am

    Re: Re:

    "spend the next hundred years comparing the company's website to every other site online."

    Nah - just Google a couple of key phrases - that usually works for me to detect student web-based plagiarism. Five minute job!

     

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  18.  
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    Jerry Leichter, Aug 13th, 2009 @ 4:16am

    Equity

    We're talking how the law *should* work here, in an ideal world, versus how it actually *does* work. (How it *does* work is that the losing law firm was held 1/3 responsible, which could be re-examined within the legal system via an appeal, but I would guess would likely be upheld.)

    In terms of how it *should* work, it's first essential to separate off the nature of the harm - a copyright infringement vs., say, a car accident - from how any damages get apportioned. One could well argue that the actual harm to the winning law firm from having their web page copied is zero. In the old days, law firms gave out paper descriptions of their services. (They still do, actually.) They all look pretty much the same. What's the big deal?

    But, OK, that's not the question at hand. The question at hand is: Given the damage done, who should pay. And here's where the nature of civil, as opposed to criminal, law enters. Civil law is *primarily* concerned with the issue of apportioning costs. X was harmed. Who should compensate X? The basic standard is: Whoever caused the harm. Causality is complicated and has to be cut off somewhere, or you blame the minor of iron ore without who's work the steel that went into the care wouldn't have been available. And you also want to look at who was in a position to prevent the harm (and had some reasonable obligation to do so) and who might have gained as a result of whatever harmed X. And this was the decision of an arbitrator, who is even more tasked to "make things right" than a court would be.

    The lawyers hired the web company. The web company acted as their agents. The lawyers apparently gained because they got a good web site. They could perhaps have dug more deeply and asked the web company for assurances that they were being given something new, not something copied. If you read the whole article, the web company asked a very low price. The guy hiring them was savvy enough to know that, and savvy enough to expect to have to do some additional work on what was delivered. Then they delivered much more than the law firm expected. That should perhaps have raised alarms. And, apparently, the copying was pretty much exact, with only the names changed. So a simple search would have been enough.

    Given all this, it's not unreasonable on its face for an arbitrator to say that the law firm - actually, the partner who hired the web firm, personally - should share in the liability. If your cars brakes are acting flakey, and you choose to save money by hiring Joe from down the block who asks you for much less than the local mechanic, and then your brakes fail and you hit someone - shouldn't you bear some of the blame?

    By the way, the court case being reported on here seems to have *nothing* to do with the merits. It seems to be a procedural decision on where the suit can be filed.

     

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  19.  
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    CleverName, Aug 13th, 2009 @ 5:17am

    Re:

    "This is much like paying someone to build you a house and then "

    ... realize that the contractor had hired an architect who had used a design from another site ...

    Never mind that you didn't tell the contractor to not use blueprints from other houses.

     

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  20.  
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    Anonymous Coward, Aug 13th, 2009 @ 5:26am

    Re: Re:

    I'd just say he's doing his job if he kills a stalker.

     

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  21.  
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    Anonymous Coward, Aug 13th, 2009 @ 7:26am

    Re:

    This isn't an issue of ignorance of the law. The issue is culpability for the commission of an act. If I ask you to build me a house, and you steal all of the supplies to build the house... I don't bear any responsibility for teh theft unless I ASKED you to steal it (making me an accessory to the crime), or I was negligent in locating a legitimate house builder.

    It's not my responsibility to interview the materials sources to ensure they werent' stolen. In a legal contract, it's assumed that the materials being sold are legally obtained. With that said, I'm not entitled to keep the stolen property.

    The house would come down in order to recover the materials. But I'm not responsible for taking it down. The fault lies with the builder, and all remedies should be sought from them. Both to recover the stolen property, and to recover for a house that wasn't built.

     

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  22.  
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    Anonymous Coward, Aug 13th, 2009 @ 7:27am

    Re:

    This isn't an issue of ignorance of the law. The issue is culpability for the commission of an act. If I ask you to build me a house, and you steal all of the supplies to build the house... I don't bear any responsibility for teh theft unless I ASKED you to steal it (making me an accessory to the crime), or I was negligent in locating a legitimate house builder.

    It's not my responsibility to interview the materials sources to ensure they werent' stolen. In a legal contract, it's assumed that the materials being sold are legally obtained. With that said, I'm not entitled to keep the stolen property.

    The house would come down in order to recover the materials. But I'm not responsible for taking it down. The fault lies with the builder, and all remedies should be sought from them. Both to recover the stolen property, and to recover for a house that wasn't built.

     

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  23.  
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    Felix Pleșoianu, Aug 13th, 2009 @ 8:43am

    Somebody here doesn't get something. A website is just a framework in which the owner puts whatever he needs. The contractor who makes a website is responsible for the technical solution and the graphical design. NOT for the content, that's the client's problem. I mean, if the web developer does even the content for you, then what is "yours" in that website?

    To try for a better analogy, if you publish a book (as an author), do you expect the editor to also write it for you? Sure, he'll help you edit the text (that's why he's called an editor). He might even help you divide it into chapters, and of course he'll be responsible for the presentation, but it's ultimately YOUR book, your text. If you're later accused of plagiarism, you don't get to say the editor has added a chapter without your knowledge, because you're supposed to be involved in every stage of the publishing process. And if you're not, and the editor does add a chapter without your knowledge, well, what kind of a book author are you?

     

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  24.  
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    nasch (profile), Aug 13th, 2009 @ 9:34am

    Re: Re:

    If he shot an intruder and the company got sued for that, I don't think it's at all clear that the company should be able to shift all liability to the security contractor. OTOH it's not clear that the contractor should not have any responsibility either. Perhaps splitting it up is the best way to incent companies to behave properly.

     

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  25.  
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    Felix Pleșoianu, Aug 13th, 2009 @ 9:39am

    On a second thought, the house analogy is worth revisiting. Say you pay someone to build you a house, and they do. You conclude the transaction and move in. Then, after a few days, a nosy guest finds half a dozen dead bodies in the basement. And I don't mean buried, but stacked neatly at the foot of the stairs.

    Now, you can easily prove you didn't kill those people (and it's pretty obvious who did), but the question is, how come you didn't know about the bodies? Just how neglectful can you get? You didn't check the contractors' work while they were building your house, you didn't check out the finished product... You didn't even go down into the basement, for crying out loud! Are you really not responsible at all for what happens on your own friggin' property?

     

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  26.  
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    The Baker, Aug 13th, 2009 @ 12:03pm

    The house analogy does not work

    The house analogy uses physical goods as a analog to website code, or website look and feel. (1s and 0s in the ether) The web developer did not go into the offices of the "victim" law firm and take their server and use it for the new site. Nothing was "stolen" We have discussed this many many times on this site before.
    I agree that it was improper to copy the site but it was not THEFT. Lets come up with a better argument than comparing this to the criminal act of theft.

     

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  27.  
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    Dez (profile), Aug 14th, 2009 @ 8:42am

    Copy is clients responsibility

    I've worked for many website design companies. We always tell the client that they are responsible for the copy put on their page. I'm willing to bet that the law firm took the lowest bid and didn't even care where the content came from. Of course the content was copied from somewhere else in that case.

    To the designer's though... wtf were you thinking? Seriously, you'll put actual copy up on a website you design without client input? Throw some lorem ipsum text up there as standard practice. When a client tells you to make something up, have them sign a form or something that absolves you from liability for the copy used.

    Yes, I agree with the decision that both designer/lawfirm should be held responsible, but I disagree with the margin, it should have been 50/50.

     

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  28.  
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    Derek Kerton (profile), Aug 17th, 2009 @ 1:35pm

    Indemnification

    The marketing practice of my firm has developed about a dozen websites for clients, usually including 'copy'. It's natural for them to request design, architecture, AND copy, because if it's a startup full of engineers, they want to outsource all that work.

    We typically meet with them, get the gist of their products and services, agree on a tone, a look and feel, and then get to work.

    But my main point is that the contracts we sign on to ALWAYS have a section titled Indemnification, in which we, the creators of their site, promise that we did not copy anyone else's stuff, and that we have every right to offer our clients full persistent rights to use the stuff, and that if they are ever sued, we take the blame. This is a no brainer for our clients to put in the contract. Did the law firm in question not do this?

     

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  29.  
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    Glenn Murray, Nov 5th, 2009 @ 11:31am

    Who's responsible for the copy?

    I'm a professional copywriter. Have been for 7 years. I work with a lot of web designers and developers. Based on my experience, it's VERY common for clients to ask web designers / developers to take care of their copy. It's also VERY common for those designers / developers to then outsource the copy to a third party. Quite often, the original client has allocated no budget to copy. And even if they have, when the web company outsources it, they need to add their own margin, so the budget is much diminished. In these situations, most good copywriters are too expensive for the job, and the work is outsourced to the lowest bidder. In fact, often it is a bidding situation, as the job is announced on a writing 'auction' site, like ScriptLance.

    Alternatively, the web company will tell the client to provide the copy. If this happens, the client will often outsource to a copywriter directly. Often, because this is an unexpected turn of events for the client, they'll have no budget (as described above), and the copy will go to the lowest bidder.

    On some rare occasions, the client will, in fact, value the copy, and will allocate additional budget to it -- enough to engage a quality copywriter.

    In ALL of the above situations, I think the supplier is solely responsible if the copy is plagiarized. The client, in good faith, requested that copy be written for their site. They engaged a copyWRITER not a copyCOPIER to do the job. I think it's fair for the client to assume that the copy would be written, not copied.

    That said, the world being the litigious place is today, it would probably be in the client's best interests to state their expectations and include a disclaimer of some sort in their contract with the copywriter. It would also behoove them to Google a few of the unique phrases in the piece, just to be sure they haven't been plagiarized.

    This sort of thing happens a lot. I've had clients contact me to let me know their competitors have plagiarized copy I've written for that client. Even funnier, I've discovered dozens of so-called copywriters who've plagiarized web copy from MY copywriting website! It's laughable, I know.

    Cheers.

     

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  30.  
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    Nikki May from Web Copywriter, Oct 12th, 2010 @ 5:53pm

    This is a tough one...

    This is a tough one because of the outside firm that put together the website and used copied content.

    The one to blame in this case is the website builder / content developer. Their client (the law firm) hired them to prepare unique, brand new and unique content. But they used copied content.

    The law firm obviously didn't realize that the content on their website was copied. However, their web content / copy is their responsibility.

     

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