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In Thumbtack v. Liaison, plaintiff sued for copyright infringement and trade dress infringement for allegedly copying its website. The Northern District of California granted in part the motion to dismiss, because many of the plaintiff’s claims were too vague to address. The court pointed to things in Thumbtack’s exhibits, like circling part of an exhibit without explaining what it is, as examples of the problem. Such a vague complaint would make it hard, if not impossible, for the defendant to mount a defense. 

The court then turned its attention to the surviving claims made by Thumbtack, which included the accusation that Liaison copied verbatim the non-discrimination policy on Thumbtack’s website. The defendant countered by saying that a copyright on non-discrimination policies would necessarily be very thin because it’s basically the same thing on every website. The judge declined to compare “word-for-word” the two policies, saying that needs to be settled by a fact finder. It may end up being that this is a commonly worded thing that everyone’s website has, but that’s not something the judge wanted to decide in a motion to dismiss.

Thumbtack also claimed that Liaison used the phrase “smart hiring,” a phrase that Thumbtack used, with different photographs beneath these phrases. Unfortunately for Thumbtack, it registered the copyright in the text of its website, but neglected to register for copyright in the arrangement and selection of the elements of that page. Also, placing a simple phrase over different stock photographs of someone using design tools only amounted to “a commonplace combination” that was not protectable.

Plaintiff also claimed that the page called “The Information We Collect” on defendant’s website was almost identical to plaintiff’s privacy warning. Again, whether these segments were unprotected stock language or involved plaintiff’s original language could not be resolved in a motion to dismiss. To the extent that the case was dismissed, the judge gave the plaintiff a chance to specify and indicate what exact parts of the two websites were the same. 

Lastly, the plaintiff claimed that its “Health” pages were copied — but it didn’t really say what part of it had been copied. If Thumbtack only meant that the titles of the website pages were the same, that, again, would be something that’s not protectable. Those are short phrases, and common ones at that. If plaintiff instead meant something more than the page title was copied, then they hadn’t been sufficiently clear. So, that claim was dismissed, but without prejudice to amend the complaint. So, out of four claims that were sufficiently specific, two of them were dismissed, and two of them survived dismissal. 

One thing this case illustrates is that registering copyright in the selection and arrangement of the website elements might have been more enforceable than merely registering the copyright in the website’s content. Of course, if the plaintiff had merely copied and pasted someone else’s stock “non-discrimination policy” and privacy policy, that content should have been excluded from the copyright application as pre-existing material. 

Another issue is that some expressions are standard or common and can’t be protected by copyright law. Maybe if “smart hiring” were exclusively used by the plaintiff (and if they were not merely descriptive…), plaintiff might have a trademark infringement claim, but that’s not what plaintiff alleged here. In any event, the court insisted that defendant was entitled to more specific claims, and simply showing pictures of two competing websites was not sufficiently specific. Back to the drawing board — or, if you don’t have a strong claim for infringing a website’s copyright, just sell a product that’s better than your competitor’s.

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