The Perils of Boilerplate Notices

It’s come to my attention that David Davis has opened up a new website in support of his campaign in the upcoming Haltemprice and Howden by-election.

Now, content-wise its a little thin at the moment, but as the domain was only registered on 13 June, we’ll not hold that against him, but scooting round the site what has caught my attention is its copyright and related notices which rank amongst the most unintentionally hilarious I’ve seen in a very long time.

Copyright Notice.

All editorial content and graphics on this site are protected by U.S. copyright and international treaties and may not be copied without the express permission of Promoted by Duncan Gilmore on behalf of David Davis, which reserves all rights. Re-use of any of this site content and graphics for any purpose is strictly prohibited.

Not necessarily.

The site specifically cites protection under US copyright law and international treaties, i.e. the Berne Convention and that brings into play the principle of ‘Fair Use‘ – the British equivalent being ‘fair dealing’ – which permits:

limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review.

In US law, fair use is determined by a four-factor balancing test based on the following:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

In the case of this article, the site’s copyright notice is being reproduced and reviewed for a non-commercial and education purpose, as by fisking it in full, I’ll be teaching you a little of the ins and outs of copyright and intellectual property law along the way, and its patently a poorly adapted boilerplate notice it has no intrinsic commercial value.

That’s three of the four factors nicely covered and as to the question of proportionality, well that depends on whether you take the individual notice to be a work in its own right or only part of a larger work consisting of the full content of the site.

Personally, I doubt it matters as I’ve already covered three of the four bases and even if Davis’s agent were daft enough to try an make an issue of this article, and risk a bit of Spartacus action in the process, its extremely unlikely than a judge would consider that I’ve acted in a disproportionate manner here.

Re-use

DO NOT copy or adapt the HTML that David Davis creates to generate pages. It is fully protected under the law by Promoted by Duncan Gilmore on behalf of David Davis’s copyright. This action has been established as clear infringement in the legal community and will not be tolerated by Promoted by Duncan Gilmore on behalf of David Davis.

As the site is, judging by the ‘.cfm’ file extensions used throughout, generated from a back-end database there would be little or no point in copying its HTML output. In fact, HTML is not used to generate the pages as such, merely format the output generated from a database using server-side Coldfusion sourcecode the exact structure and content of which cannot be determined from the pages it outputs.

Unless the site is very poorly secured, which would enable me to trace and download the sourcecode with little or no effort, or I can be bothered to hack the site – which I can’t – then those portions of it that may be subject to copyright are just not part of the pages you see in your web browser and as for the HTML itself being subject to copyright, well that’s just not true.

Looking at the sourcecode of the page, as delivered to the browser, what we find is that the site uses standard HTML and CSS code to format the page. Give or take variations in personal preferences when it comes to CSS naming conventions, the HTML and CSS used in the page cannot be considered to subject to copyright because they are simply operations and, for the most part, at least entirely unoriginal if the only possible method by which a particular effect can be accomplished.

Text-based linking to the David Davis website is permitted, however “framing” or similar nested use of the websites’ content is strictly prohibited.

Maybe, maybe not.

The legality or otherwise of ‘framing’ is hardly as clear cut as the notice tries to suggest. It’s certainly a no-no is done for the purposes of ‘passing off‘ but outside that its more a question of whether the manner of the framing satisfies the fair use test or not.

Permission to use David Davis content is granted on a case-by-case basis. Promoted by Duncan Gilmore on behalf of David Davis welcomes requests.

No.

Fair use covers a multitude of ‘sins’ the most prevalent being for the purposes of parody, news reporting, criticism, education or review, so as long as you’re mindful of its provisions and tests there’s not need to even ask for permission let alone obtain it.

Infringement

Among the trademarks and service marks owned by Promoted by Duncan Gilmore on behalf of David Davis, is “David Davis”. A specific site logo is available for you to put on your site as a link. Any other use of Promoted by Duncan Gilmore on behalf of David Davis trademarks and service marks requires Promoted by Duncan Gilmore on behalf of David Davis’s express and written permission.

Nah, fuck off!

For one thing, I’ve already checked both the UK and US trademark databases and Gilmore most certainly hasn’t registered any trademarks, let alone ‘David Davis’, nor indeed is it likely that the relevant regulatory authorities in either the UK or US would even entertain a registration of such a common name.

If it wasn’t patently obvious that Gilmore has just slapped the name David Davis into a bunch of boilerplate text without any thought as to how absurd this was all going to look, I’d be inclined to think he was taking the piss.

Please note that the “look” and “feel” of David Davis and the manner in which the site functions and is implemented are Promoted by Duncan Gilmore on behalf of David Davis trademarks. In the graphical area, this includes David Davis’s color combinations, button shapes, layout, and all other graphical elements. The “look” and “feel” of a web site has been deemed the property of that site in legal precedent.

What legal precedent?

So far as ‘look and feel’ issues are concerned there are only two significant legal precedents that one need to be aware of, Lotus vs Borland (1990-1995) and Apple vs Microsoft (1988-1994), the combined upshot of which is that ‘look and feel’ is not subject to copyright in any meaningful sense of the term.

Apple did eventually succeed in getting an intellectual property lock on its OS X series of interfaces, but only be successfully registering them as a registered industrial design, and a hardly think that Davis’s agent is likely to go that far, not least because it more likely that Davis will have retired from public life by the time his agent has sorted out the paperwork.

UPDATE

As I’ve just discovered for myself and Labour Matters has pointed out in comments, Davis’s site is delivered using the Terapad platform, which is provided as an add-on by his webhost and, more to the point, appears to be using a free generic template provided by the company, all of which makes this entire notice even more absurd. And now back to the fisk…

We will actively search and investigate cases of infringement against David Davis copyright and trademarks. If appropriate, we will issue an initial warning to all parties involved and proceed further if necessary with prosecution to the fullest extent of the law.

Knock yourself out, David (Gilmore and/or Davis), I’m hardly difficult to find.

Just one question before we get into this properly… why are you citing copyright protection under US law, when the site is hosted in the UK by HTL Online?

Do you even know which jurisdiction you’re operating in here?

Okay, so I’m taking the piss a little now, not just because its patently obvious that whoever put this copyright page together has just blagged the text wholesale from a US-based corporate site of some description and inserted a bunch of cut and pastes reference to Davis and his agent some of which are grammatically absurd, which is yet another reason why they can’t cry foul over this article, but also because, given the nature of Davis’s campaign, copyright notices of this kind are entirely self-defeating.

Surely what Davis must want is for the site to generate as much discussion and debate as possible, which surely necessitates, at most, the use of a Creative Commons licence or similar if not putting the site’s content entirely into the public domain, particularly as the site does not, as yet, sport a comments facility. With the likelihood, if not near certainty, of it attracting trolls and astroturfers, if opened up to to user comments, the only way that Davis can really spark the debate he professes to want is if bloggers pick up on his content, reproduce it and comment on it, in which case the very last thing that makes sense is the use of such an absurd, heavy-handed and faintly ridiculous copyright notice.

ANOTHER UPDATE

Fuck me but PR Week are reporting that there’s actually a PR firm behind the launch of Davis’s website…

David Davis has brought in Fleishman-Hillard to support the rollout of his controversial ‘David Davis for Freedom’ campaign, officially launching today.

Fleishman-Hillard’s digital head Paul Borge registered the domain name for Davis’ campaign website, which went live this afternoon and includes web 2.0 applications like a Twitter feed and Facebook group.

The ridiculous state of the various bits of hastily cribbed boilerplate legalese were bad enough when I thought they were put together by Davis’s agent, but now I find there’s a PR company involved as well?

Mind you, a quick look at the company’s own website would hardly inspire me with confidence when it came to commissioning a campaign website, especially the case study page in its digital media section, which tells you all about three web-based projects they’ve undertaken and how great they were/are, including PDF presentation slides, but all without a single hyperlink to any of the websites so you can see for yourself…

Forget using a PR company, DD, you should have just hired yourself a blogger for a couple of days.