Can Digg Sue Netscape And Win?

A quick glance of Netscape’s new beta front page and one thing comes to mind: it looks and works a lot like Digg. The differences aren’t even subtle. It’s a blatant rip-off. And so, the question arises, can Digg protect it’s creation in some way? Or more specifically, can you legally protect a user interface?

I can sort of speak to this issue because I have a law degree and my essay for my Copyright Law class was about the copyright-ability of user interfaces. I’m by no means an expert, but I’ll try to sum up what I learned there as it would apply to Digg and Netscape.

The answer to the above question takes us into the world of copyrights and patents, the only two viable options for protecting the “look and feel” of an application.

Copyrighting Digg

From the U.S. government’s own copyright FAQ:

Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.

Copyrights protect:

…original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

Now don’t get all giddy at the sight of “computer software” in the excerpt above. What they’re talking about there is the actual source or object code of a piece of software. That code is filed as a “literary work” (go figure) and is protected under copyright law.

But what if the code is entirely different but the result is clearly similar? It’s obviously the case that Netscape did not steal the Digg codebase but rather studied the end product and wrote their own code to create a similar end-user experience. Can Digg protect itself, under copyright law, from others copying the “look & feel” and general functionalty of Digg?

Under U.S. copyright laws, no, they pretty much can’t. While there is no perfectly concrete basis for this rule of law, the case precedents of previous years have made it pretty clear that you can’t copyright a user interface. From the same FAQ, under what cannot be copyrighted:

Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration.

Ouch. There are some seriously broad and general terms there. You can make a pretty strong argument that the “Digg experience” is a “system” or “concept” that is comprised of a set of functionality (i.e. “methods” or “procedures”). The Apple Computer, Inc. v. Microsoft Corp. case that ended in 1994 seemed to primarily assert that you cannot copyright the “look & feel” of a software application. In that case, Apple went after Microsoft’s Windows product asserting copyright infringement of its Macintosh operating system, and lost. Wikipedia nicely summarizes it here.

There are public policy arguments against protecting user interfaces under copyright law. For one, a good user interface makes us all more productive and it’s a better thing for society if others can benefit from it. Another argument against copyrighting user interfaces is that they’re not really creative works – the primary domain of copyright law – but rather tools or devices in and of themselves. Which brings us to the patent option.

Patenting Digg

A patent is the grant of a property right to an inventor for an invention. An inventor can patent an invention under various criteria (listed here) but the one that best relates to Digg is the ability to patent “any new and useful process.”

Now unlike copyrightable works, where by simply completing the work and calling it yours it is copyrighted, the patent process requires the inventor to be a lot more proactive about filing a patent. In other words, even if you invented something, if you don’t patent it, it’s not protected.

As to whether user interfaces can be patented, that’s also debatable. Amazon successfully patented and has since defended it’s patent for 1–click shopping. The patent caused a pretty widespread backlash against patenting on the Web but the patent itself is still standing today. Apple, on the other hand, failed to patent the famous iPod interface (blocked due to a prior application).

As for Digg, well we can spare ourselves the discussion on patent protection because it doesn’t appear that Digg has attempted to even to try to patent it’s service. There is no mention of patents or patents pending on the site and a search of the patent database reveals no such filing.

And so, it seems that Digg will just have to bite it’s tongue and watch as the, umm *cough* “new Netscape” makes it out into the world. As they say, imitation is the sincerest form of flattery.

1 Comment Can Digg Sue Netscape And Win?

Leave a Reply

Your email address will not be published. Required fields are marked *