It’s The Content Stupid

A Florida federal court recently shot down an attempt by a defendant to dismiss a copyright infringement suit on grounds that might be charitably described as “hair splitting. The plaintiff produced sales materials on its Web site. The defendant reproduced the wording of printouts containing the same text as the Web site. In the suit, the defendant claimed that the plaintiff had obtained a copyright for the Web site, but not for the printouts. Even though the printouts were a verbatim copy of the Web site. The court wasn’t buying. It compared the situation to a movie on a DVD. Even though a movie studio holds copyrights for motion pictures, not the contents of DVD’s, it can seek copyright protection for illegal copying of DVD’s. The same analysis applied here. As a technical matter, the court actually dismissed the complaint because it referred to the printouts and not the Web site. But the court dismissed without prejudice, and granted the plaintiff leave to amend, so he could correct that technical glitch. When your defense is roughly the equivalent of crossing your fingers behind your back, the odds of prevailing generally are not high. And so, substance prevails over form.