Maryland Bar Bulletin
Publications : Bar Bulletin : March 2007

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 Bar Bulletin Focus

Intellectual Property     

Easy and Fun Copyright Ideas to Fight Firm Website Plagiarism

Your law firm has (or will likely soon have) a website including contact information, one or more photos, a firm history, your biography and whatever else you have decided to include as part of your practice development strategy.

Imagine spending valuable time and money loading your website with lots of original content, including useful tips, links to your own forum (where people can post questions and offer insights) and a wide variety of artfully-composed photographs and text, all of which convey a polished, distinctive image to the outside world. Now, imagine further that someone copied your entire website and was using that copied web content to compete with you!

This hypothetical is not so hypothetical. Technically, it's easy to rip off web content. Anyone can copy significant amounts of web page content from most law firm websites. When using your Internet browser, it is possible to "view" the site's "source" programming, since most web pages are encoded using popular programs such as the JavaScript® utility. Someone may copy your entire website into a file that your competitor can then use for his or her own site (after changing names, numbers, etc).

A recent article – "Seeing Double, Tennessee Lawyer Claims His Site was Copied by Miami Firm"
www.abanet.org/journal/ereport/j5web.html
- published in the ABA's web-zine ABAnet Journal addressed a situation very much like our hypothetical. Significantly, the article did not mention how copyright law can be used to combat the alleged plagiarism.

To summarize the ABAnet report: attorney Gregory Siskind's award-winning web site www.visalaw.com/ has been painstakingly filled with a wide variety of useful, timely information about his practice area, immigration law. The website includes a hyperlink to his blog for timely immigration news and analysis. Another law firm, Disney Thompson, allegedly provided the sincerest form of flattery in constructing its own website www.visa-to-usa.com/, which bears striking resemblance to Siskind's, even providing what appears to be a link to a blog offering the same kind of timely information; moreover, we can confirm that, as of January 4, 2007, there appeared to be no way to activate that link. In short, the Disney Thompson firm's site looks just like Siskind's site, but has a dead link in the exact place where Siskind's site maintains a link for his blog.

Apparently not flattered, Siskind complained to the Florida State Bar authorities about Disney Thompson's alleged plagiarism. According to the ABA article, the Disney Thompson firm claimed that it was unaware of Siskind or his site until Siskind filed his complaint with the Florida State Bar. Disney D. Thompson reportedly wrote a letter to Florida Bar authorities stating that "before receipt of this complaint, I had never heard of Mr. Siskind or his law firm, much less visited his Web site." Siskind's state bar complaint was dismissed on procedural grounds as a "civil" matter. Significantly, Siskind does not appear to have resorted to copyright law – not yet, anyway.

Creative, original website content, including text, photographs and the arrangement of graphical elements are all protectable using copyright, so long as a few procedures are followed. Siskind can use copyright to great advantage, and so can you.

Here is the fun part: You can even spring a trap for the unwary that may choose to plagiarize your website and steal your content (by simply copying your site's "view source" listing). In copyright litigation, the plaintiff must prove, among other things, what is called "access". The defendant in a copyright infringement suit may choose to assert a defense that he or she independently developed the accused work, and so may deny that they ever had access to your website. Sound familiar?

Here's the trap: hide a secret marker in a non-executable portion of your firm's website. For example, suppose your husband's or wife's birthday (or WBD) is January 1, 1970. Your web developer can include a dummy variable that is entirely arbitrary and unique, such as "WBD=01011970", and this unique marker can be secreted in more than one place in your website's HTML listing. That kind of arbitrary, unique information or something else unique to you (like your Firm's tax ID number) would provide an ideal secret marker that, if plagiarized, is likely to be copied along with the rest of the HTML programming. When you review the accused website, finding that marker may well provide for a few devastating admissions in a deposition on the issue of "access".

One sobering thought is that an unscrupulous web developer may sell you a web site that they copied from one of your competitors. Consequently, it is advisable that your web developer's agreement include a warranty or representation clause to protect you against this (hopefully remote) possibility.

You can also help yourself by making sure that copyright in your website and its content is (a) owned as "work for hire" or (b) assigned to your firm by using a standard copyright assignment form. As the website is updated, please also make sure that you have an assignment for (or own) the newly-added content, when possible. Also, register (and then periodically re-register) your website with the Copyright Office. Copyright registration forms are available online at www.copyright.gov.

In any event, declare an open season on law firm website content plagiarists. After all, as a group, shouldn't attorneys be harder to rip off?

J. Andrew McKinney, Jr., is a partner with Jones, Tullar & Cooper, PC, a firm concentrating in Patent, Trademark and Copyright Law, with offices in Baltimore and Arlington, Virginia.

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Publications : Bar Bulletin: March 2007