Is Your Website Published or Unpublished?

The case of Furnituredealer.net (FDN) versus Amazon and Coaster Company of America (CCA) is a fairly pedestrian one. 

It deals with whether Amazon and/or CCA infringed FDN’s copyrights by scraping descriptions from their website for use as part of Amazon’s product listings.

However, the case itself may depend on a question completely unrelated to any of defendant’s alleged actions. That question is whether the descriptions were “published” or “unpublished” according to the law when they were put on FDN’s website

It’s a confusing question with no easy answer, but it’s an issue that puts the copyright registration of every website at risk. Simply put, trying to match very outdated concepts with the realities of the modern internet is a minefield for creators and, as this case highlights, getting it wrong can have dire consequences.

Understanding the Case

The case itself is fairly straightforward. In February 2010, FDN entered into an agreement with CCA where FDN would build and host a website for CCA for the purpose of selling CCA-manufactured furniture. This agreement FDN included generating content for the site, most importantly descriptions.

However, that agreement made it clear that FDN retained all rights to the intellectual property involved. As such, they would hold the copyright on those text descriptions.

However, in 2014 CCN began working with Amazon and Amazon was dissatisfied with the quality of descriptions that CCA created for themselves. They asked about the descriptions on the FDN-hosted CCA website, but were informed that those were owned by FDN. However, in spite of this, Amazon scraped those descriptions and used them in Amazon listings.

In 2015, FDN filed a DMCA takedown notice, but Amazon did not take down the work in question. Though Amazon did remove some 2,000 descriptions in 2018, that came after Amazon asserted that they had proper authorization to use the descriptions and that there was nothing they could do.

Also in 2018, FDN filed the original complaint, targeting both Amazon and CCA, alleging that they both breached contracts and committed copyright infringement.

That brings us to today, where the Minnesota District Court has ruled on summary judgement, granting some motions for the defense but largely steering the case toward a likely trial.

The Registration Wrinkle

The case itself has many different elements and complexities. However, the key one for this article deals with the copyright registration FDN obtained over the work.

In the United States, a registration with the U.S. Copyright Office is required before a lawsuit can be filed, and a timely one is needed to obtain maximum damages from the courts. FDN filed for that registration in September 2015 under the title “Automated Database of Furniture Catalogs and Collections (Photographs and Text)”

The registration had hiccups and ended up taking around two years to process. However, one of the disputes against the registration is that it was registered as an unpublished work. This was likely done to simplify the registration process, especially since this was before the U.S. Copyright Office’s new procedure for registering online works. 

However, applying terms like “published” and “unpublished” to a website is complicated. This separation was created in a time before the internet and, though it applies cleanly to movies, books and records, it doesn’t apply as cleanly to online works.

According to the U.S. Copyright Office, “Online content is considered published if the copyright owner authorizes the end user to retain copies of the content or further distribute the content.”

In short, this means that, if you post your work to a web page with social media buttons, an open license or even just tools to aid in printing or emailing, the work is likely considered to be published.

But this is where FDN introduces a new wrinkle. Their pages contained a pair of copyright notices that read, “Nothing on this page may be copied or reproduced without explicit permission.” That seems to be a pretty clear indication that these pages were not published, as no distribution was intended.

However, the pages also included a button to easily print the page. This was done at the request of customers, who said that their customers were printing out the pages anyway and wanted to make the process easier.

This, according to the court, creates a mixed message. As such, the court declined to rule on this issue and said that this would be a matter for a jury to decide at a later date. 

Revisiting Unicolors

In Ferburary of this year, the Supreme Court issued a ruling in the case of Unicolors v. H&M. In that case, H&M was trying to get the copyright registration Unicolors was relying on tossed by pointing out an error in the registration itself.

However, the court ruled that innocent errors in the registration, whether they are matters of fact or law, do not disqualify a registration. As such, the court held that Unicolors’ registration was valid and that the case could continue.

That case only got a brief mention in the FDN case. Here, the judge felt that the Unicolors case did not “directly address the question of fraud” and, as such, it must be considered in this case.

In short, if it was wrongly registered as an unpublished work, which is a question still up for debate, the jury will also have to decide if there was an intent to defraud the U.S. Copyright Office with the registration.

If it was in error and there was an intent to defraud, then the registration could be ruled invalid and the claims tossed.

A Never-Ending Problem

If this problem strikes you as pedantic, it’s because it is. 

The United States is the only country in the world to require a copyright registration before filing a lawsuit. There is no registration requirement elsewhere in the world.

But even if we accept the registration requirement as a fact of life, the system we have is hopelessly outdated. There wasn’t even a system for registering blog content, like this site, until June 2020. Blogs have been a form of expression since at least 1994, meaning that, for more than 26 years, bloggers had no practical way to register their work. 

Even today, the system is wholly inadequate. It is financially burdensome, it is time-consuming and, even after Unicolors, mistakes or misfiled registrations can be a cause for dismissing an otherwise legitimate copyright infringement case.

Simply put, the system was built in a very different time. It was developed when printed books and physical records were the norm. It is ill-equipped to handle how copyright-protected works are shared today.

If we are to keep the registration system, it needs to be updated and overhauled to represent current and future realities for creators. Part of this means getting rid of artificial and meaningless separators like “published” versus “unpublished” as they simply create confusion.

Bottom Line

Barring a settlement, this case has a long way to go and there may be appeals and other courts to weigh in. 

However, the case does perfectly illustrate a problem. When you try to apply terms meant for the print world to the internet, it creates confusion. The published/unpublished dichotomy is more or less meaningless online. Even if I don’t include social media buttons or a “print this page” function, it’s easy for others to do and there’s little that a website owner can do to stop it.

Any website that is put on the public internet is going to be printed, shared and distributed whether the owner encourages it or not. Often times, providing the buttons is seen as a way of taking more control, by determining how and where it can be distributed.

In the end, this case just highlights how flawed the copyright registration system is in the United States. It’s a dated system that is not necessary. It either needs to be radically overhauled with modern distribution in mind or scrapped altogether.

Otherwise, we’re going to see a LOT more cases like this one as time goes on.