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Website Posting Alone Cannot Support Finding of Access for Copyright Infringement

(June 8, 2017) Placing copyrighted materials on a website does not justify an inference that an alleged infringer accessed the materials, especially when the materials are not strikingly similar, the Seventh Circuit found.

The case involved whether a homebuilder infringed copyrighted home plans. The appellate court said the home-plan field was “crowded,” making it difficult to find protectable creative expression “because opportunities for originality are tightly constrained by function requirements, consumer demands, and the vast body of similar designs already available.”

It also did not help that plaintiff Design Basics, LLC’s business model was “trawling the Internet for intellectual property treasures.” The company originally produced market-ready designs for modest single-family homes. However, the original owners sold in 2009, after which time the company filed over 100 federal copyright lawsuits. “Design Basics offers its employees incentives to scout out potential copyright infringement cases, paying its employees a finder’s fee in the form of a percentage of the net recovery relating to any home plans they locate,” the opinion stated. “This business strategy is far removed from the goals of the Constitution’s intellectual property clause to ‘promote the Progress of Science and the useful Arts.’”

The appellate court found defendant’s plans “resemble Design Basics’ plans, but only because both sets resemble common home designs one might observe throughout the suburbs of Milwaukee, Chicago, Indianapolis, or many other communities. There are only so many ways to arrange a few bedrooms, a kitchen, some common areas, and an attached garage.” A Design Basics draftsman offered a “conclusory six-page declaration” stating that the plans were “substantially similar.” However, the court noted the same person offered “remarkably similar opinions in other Design Basic cases.” The testimony was insufficient to support a copyright claim.

The Seventh Circuit also found that Design Basics failed to show that the defendant had access to the plans. The company argued that posting designs on its website was sufficient to show access. However, Design Basics’ witness “did not know when any of the plans at issue were uploaded to the site, nor did he know whether Lexington or its agents ever accessed the site.” The company argued that “the mere existence of the website establishes a reasonable possibility that Lexington accessed its plans.”

The appellate court rejected the argument. “[T]he existence of the plaintiff’s copyrighted materials on the Internet, even on a public and ‘user-friendly’ site, cannot by itself justify an inference that the defendant accessed those materials. It follows that a plaintiff who cannot show striking similarity and whose evidence of access reduces to the mere existence of a website cannot survive summary judgment on a copyright infringement claim.”

Balough Law Offices, LLC assists its clients in protecting their intellectual property. Firm member Cheryl Dancey Balough is an adjunct professor for copyright law at Chicago-Kent College of Law.

Design Basics, LLC v Lexington Homes, Inc., Seventh Cir. No. 16-3817 issued June 6, 2017.