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Just One Question for Jodi Sax
Feb 04, 1998 :: Michael Sippey

Jodi Sax is an entertainment attorney specializing in copyright, music and new media. She's also a web consultant and designer, and is proprietor of She recently answered a naive question of mine...

MS: Last year the web witnessed a high-profile HTML theft when Salon swiped some HTML lock stock and barrel from Derek Powazek's The Fray. As websites become more and more complex (implementing new-ish technologies like Cascading Style Sheets and Dynamic HTML), site creators are likely to want to protect the intellectual property that's locked up in their code. What protection does U.S. copyright law give to implementations of open presentation markup languages?

JS: Actually, the answer to this question is relatively simple: U.S. copyright law does not give any "special" protection to implementations of open presentation markup languages. In fact, the same rules apply to such works as to any other works of authorship.

The Copyright Law protects "original works of authorship." But what is a work of authorship in the context of computer codes? This has been the subject of much debate. Section 102(b) of the copyright act (17 u.s.c. section 101 et seq.) specifically provides that copyright protection does not extend to, inter alia, processes or methods. Thus, it is well-settled that what is protected by copyright in the programming arena is the creative expression embodied in the work, not the coding itself, as that is utilitarian and not protectable.

So what is creative expression when we are talking about a series of ones and zeros? (Forgive me for the oversimplification...I'm somewhat of a techno-ninny.) It is the selection and arrangement of these elements.

Now, back to the question. If it is the selection and arrangement of elements that renders a computer program a unique, protectable work of authorship, than shouldn't more protection be offered in this area with the advent of open presentation markup languages? Well, I suppose yes from a policy standpoint, but think about analogous situations: The words in a script or a book are not hidden...should coding be given special treatment?

In some ways, though it is easier to steal intellectual property when one can view its component parts without having to reverse engineer them, the proliferation of open presentation markup language doesn't really change anything. Before, as now, one could be deemed an infringer by committing either literal and non-literal (i.e., it looks and feels the same but isn't programmed the same) infringement. So now it's just easier to commit literal infringement. But conversely, it's easier to get caught. If codes can be viewed, it is very simple to detect when code has been stolen. Which may be but a small consolation, but at least now a copyright holder can act more efficiently as their own policing entity...

Geez, Michael...if only you had asked me what I wanted for Christmas...



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