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For every frequently asked question (FAQ) there is an answer. And with respect to the question whether FAQs posted on Web sites are deserving of copyright protection, Judge Barbara B. Crabb, of the U.S. District Court for the Western District of Wisconsin, in the case Mist-On Systems, Inc. v. Gilley’s European Tan Spa, on May 2 answered “no.” Thus, it appears that lawsuits designed to snuff out the competition by seeking to attack Web content such as FAQs may fail, and if anything, may embolden competitors. THE ALLEGATIONS Plaintiff Mist-On Systems alleged that defendant Gilley’s European Tan Spa infringed on its exclusive rights under the Copyright Act by preparing and displaying on its Web page a page that mirrored the FAQ page on Mist-On’s Web site. Mist-On sought monetary and injunctive relief from Gilley’s based on the “irreparable harm” it had suffered. THE COMPETING WEB SITES Mist-On’s Web page, entitled “Mist-On Tanning Frequently Asked Questions,” consisted of a single page of 19 questions about the Mist-On Tanning process and provided other related hints. Gilley’s Web page, entitled Gilley’s European Tan Spa “FAQ’s Sunless Express Spray Spa,” comprised three pages of operating instructions and 16 questions about the Sunless Express Spray Spa. According to the court, “when the two works are compared side-by-side, similarities are evident.” That is because “both web pages utilize the Frequently Asked Questions format,” “both web pages use common words to begin each question, such as ‘how,’ ‘can,’ ‘is,’ ‘what,’ and ‘will,’” and because “both web pages focus on a spray-on form of sunless tanning” and “provide similar information.” THE COURT’S RULING Notwithstanding the foregoing similarities, the court held that “these superficial similarities fall short of proving copying” because they are not the equivalent of copying constituent elements of the work that are original. According to the court and prior case law, regardless of the “original authorship” contained in a work, “the facts and ideas it exposes are free for the taking.” Taking it a step further, the court held that “a business cannot copyright a Frequently Asked Questions page” or the words or phrases that comprise such a page because “the format of a Frequently Asked Questions page is a common idea in our society.” Indeed, “the elements of a Frequently Asked Questions page (a list of questions beginning with common words) are stereotypical.” Ultimately, Mist-On agreed that it could not copyright the idea of a FAQ page. However, Mist-On argued that because the Gilley’s FAQ page was so similar to the Mist-On FAQ page that there must be some copyright infringement. The court swatted away this argument by noting the differences between the two Web pages, such as the fact that “the sequence, the wording and the number of the questions are different from each other,” “five of defendants’ questions are entirely unique to their page,” “seven of plaintiff’s questions are entirely unique to its page,” and “the layout of the web page[s] is different.” Moreover, “there is no truth to plaintiff’s assertion that many of defendants’ questions and answers are ‘nearly identical’ to plaintiff’s.” Accordingly, the court granted summary judgment without the need for a trial in favor of defendant Gilley’s. LESSONS LEARNED Care must be taken in taking legal steps to deal with business competition. Plainly, this particular lawsuit did not help Mist-On in its efforts to deal with competitor Gilley’s. Moreover, bad facts can make bad law. Here, the decision to assert copyright infringement for Internet content such as an FAQ page might not have been wise, especially when there truly are distinctions between the Web pages at issue. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected]

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