Facebook sues theme developer over copyright infringement

52 Comments

An Indonesian blogger, Ainun Nazieb, is in a little bit of hot water. He created a WordPress theme based off the pre-timeline Facebook profile design. In fact, it’s almost an exact clone. His problem is that Facebook found it. If you haven’t paid much attention to how Facebook handles things like this, I’ll take a minute to explain: they take legal action. Huh, that explanation was a lot simpler than I thought it would be.

Nazieb created a theme that he called “Smells Like Facebook.” He currently has 3 charges filed against him, two criminal and one civil. The maximum penalty for one of the charges is two billion rupiah, which comes out to about $222,346 USD. While Nazieb doesn’t think the maximum penalty will be given, he’s still seeking legal counsel over this.

What do you think? Is this too much? Or is Facebook right for doing it? If you were in their position, how would you handle someone cloning your design?

52 thoughts on “Facebook sues theme developer over copyright infringement

  1. I’m not surprised. I commented that I thought this would happen when I saw the TechCrunch post about this Facebook clone theme the day it was released.

    I’m not sure why some theme developers and designers think they can just clone another site’s design and create a theme or design out of it.

    Being inspired by someone else’s design and creating a design that uses another design as inspiration is one thing and perfectly acceptable in the design work. However, creating an exact clone of a design to make it look identical or near identical to the original is simply stealing. Period.

    • While I wholeheartedly agree that it’s unethical I’m not sure that it’s actually illegal. There’s a distinct difference.

      For instance, Facebook can certainly copyright their code. But I’m not certain that they can copyright their design (the output). The defensible part of the code base isn’t the final product – it’s the method that Facebook used to get there (the code itself). If they have either a utility patent or a design patent for their Timeline, then certainly it’s protected by law. But a theme is just a layout – essentially just placeholders, color choices & font choices. By altering the material contained within those boxes, the end user has copyright to the material therein… But I’m just not convinced that ripping off the end design of a web page constitutes an actual illegal act.

        • I agree copyright would cover a typical “design” – but a theme is not specifically a “design.” There’s some gray area here.

          A design implies a finished product. But a facebook profile – a social profile – is not. It’s a framework for content to reside within. Same goes with a WordPress theme. The material contained therein certainly is covered by copyright (though who’s that is is another point entirely) – but the component parts of the theme aren’t explicitly finished goods. FB certainly owns their trademark, owns the copyright to the code & method used to prepare a profile to be displayed.

          FB cannot copyright a design that is absolutely unique in every usage – that’s my slippery slope. That’s where I oppose the notion that this is protected under the same rules the protect a finished good – a photo, artwork, song, transcript, screenplay, etc. That’s what copyright means – to protect from the illegal distribution of copies. Where does the line get drawn? The blue bar? The placement of the photo? The alignment of the text? Again – this has more to do with patent law than copyright law. If Facebook believes their method for displaying information is so novel that it warrants a patent – that is the law that should be utilized.

          Again, I’m not disagreeing that digital designs cannot be copyrighted. I do disagree to the notion that a set of layout assumptions constitutes a copyrightable & defensible design.

        • Just re-read your linked article here – and I think it only further proves my point. Facebook owns the HTML & CSS. I have not once deviated from that position. If the theme developer had access to those files when he created his theme and used that source in his theme – then yes, he’s in violation of copyright.

          But exactly as was described in the linked article:

          If you don’t copy every aspect of the design, and you write the code yourself, you could argue that you reverse engineered the design.

          By it’s very nature, because of the output of a social network profile (ie it will always contain different information in the fields that are being contained by the theme file) you cannot copy every aspect of the design (most notably, the trademarked FB logo). Of note – FB may own the trademark to the “Facebook blue” color – so there’s another thing they could get at. They also can own the copyright to any icons that are on a Facebook profile page. I’m not familiar with every aspect of the case. I’m willing to admit there may be ample things that the theme developer did do to violate legitimate copyrights. But if he simply viewed a picture of a Facebook theme and wrote his own CSS & HTML based on the layout assumptions – that’s not copyright infringement.

          Most of what’s being argued here actually has to do with design patent law – not copyright law. And a design patent is not automatically granted like copyrights are. If Facebook believed they pioneered a novel method for displaying profile / web content & data, then they certainly could apply for patent protection.

          • “If the theme developer had access to those files when he created his theme and used that source in his theme – then yes, he’s in violation of copyright.”

            Not so soon. This is too vague and open to interpretation. One can argue, that anyone who opens a facebook Web page ‘has access’ to the CSS by virtue of the Web server having sent it to the trouser. And what does “used that source” exactly mean? Obviously the WP’s style.css is going to be markedly different to the FB CSS file. FB might be able to copyright their CSS files in their entirety, as a whole, but there is no way they could copyright CSS down to single lines or specific selectors. Also, there is no way for FB to prove that their CSS parameters were copied rather than re-created. FB has no leg to stand on and this case has no merit. Of course, their strategy is to harass the developer by forcing him to spend money on representation.

  2. I’d say the mere threat of legal action from a powerhouse like Facebook with their legal & financial resources will be enough to ensure Ainun’s theme disappears pretty quickly. It would be a real shame though – it looks like a pretty cool theme though!

    Facebook would have a case I think in terms of copyright and passing off – when I first loaded the theme I thought I was on Facebook – it’s that good! This could be considered a security risk from Facebook’s perspective – especially given the amount of phishing sites out there.

    • You need to look at the bigger picture here. This isn’t about him profiting by selling the theme.

      It’s a free theme that can be taken and then used by a scammer to trick users into inputting their FaceBook credentials by tricking them into believing they are actually on FaceBook. It’s an easy tool for scam artists and malware creators.

      This is about FaceBook protecting their brand, their brand identity and their users. FaceBook is 100% in the right here, the theme designer is in the wrong. End of story.

      • +1 Carl – you’ve nailed exactly what Facebook’s case is right there. It is a good showcase of how WordPress themes can be extended beyond your typical blog/website layout though! Food for thought for future theme concepts.

      • This is the worst argument yet.

        Facebook owns the trademark to their logo & likeness. That provides them ample protection under the law from outright phishing scams. Furthermore, copying the material used to create the component parts of a FB profile would very likely constitute a violation of copyright to the person who’s profile was being spoofed – but Facebook doesn’t own the rights to those elements.

        Let me put it this way. I create a Facebook profile page using their timeline, and I create an identical WordPress site using this theme to reproduce my profile information. Can Facebook sue me? No, not unless I use the Facebook logo and any other trademarked or facebook-owned elements (such as header / footer navigation that is 100% uniquely theirs and falls beyond “fair use.”, or if I use their HTML or CSS rules to build my theme – which again I do agree is copyrightable).

      • “and then used by a scammer”
        OMG I can’t believe this argument! Yes, it can be used for a scam. Let’s also not let Apache guys off the hook, all the computer makers, all the banks that make online payments possible and, of course, the US government for setting up the Internet in the first place.

      • You can do that by pressing cmd+s (or on windows: ctrl+s) while on Facebook, you’ll get the exact html, css and images bundled in one folder.

        But the real reason is indeed their brand protection. If they didn’t take action others would follow and everything will look like Facebook! -)

  3. Thanks for this too! We just disabled the theme from being available to our network members. Why? I don’t care to smell like Facebook if they take action like this anyway.

    My question would be, how on earth did Facebook come up with a six figure penalty against the developer who distributes this theme for free? Answer: That’s probably what they need to pay their lawyers!

    • The penalties are probably tied to standard penalties applied to this situation. Just like there are standard penalties associated with pirating movies and music. The end result would most likely be penalties much lower than this should it play out in court. But ultimately it would probably be settled long before it reaches the courthouse.

  4. If he didn’t use their assets, does Facebook even have legal grounds? Unless they copyrighted the basic look of their site, what are they suing him for? For using his own time and assets to build something that looks like the original? Can Levi sue Wrangler because they made some jeans that look like theirs?

    Regardless, the problem with our system of law is that defending yourself is expensive even if you win. Even if a judge would eventually throw the case out, it’s often not worth the risk of thousands in lawyer fees, and having your name in headlines for something like this no matter the outcome can potentially be detrimental to your career.

    • Design can be protected by copyright and history tells us the courts are on FaceBook’s side on this.

      Just like a piece of artwork such as a photograph or a painting can be protected by copyright, so can a web site design or an application UI.

      So yes, even if he didn’t use FaceBook’s assets and recreated the FaceBook design from scratch they have legal grounds to take action. But in this case he did use their assets to create the design, he used the design of the FaceBook site as a whole as a blueprint and guide to create his clone.

      FaceBook has a case here. You can whine and moan and complain that it is unfair.

      But frankly I think wholesale stealing someone else’s design is unfair. It also happens to be illegal should whoever you steal the design from chooses to enforce their rights as the creator and copyright holder, which is exactly what happened here.

      This same issue is playing out in court battles between Apple and Samsung on a much bigger scale and Samsung didn’t even copy Apple’s designs as closely as this theme developer copied FaceBook’s design. Just imagine if Samsung had wholesale copied the iOS UI the way this theme developer wholesale copied FaceBook’s design.

      • As I stated in my previous comment, you’re arguing the wrong law here Carl.

        Apple is not suing Samsung based on copyright law – they’re suing them based on PATENT law.

        Apple argues that their patents protect against the method that samsung used to display app icons (and other aspects of the product). It has nothing to do with copyright law.

  5. Pingback: Facebook Sues WordPress Theme Developer Copyright Infringement | Wordpress Multisite Blogs Help Tips | Behind the Scenes

  6. In my humble opinion Facebook has a right to enforce the law if negligence has been reach or copyright law has been implemented.

    However and please don’t get me wrong, I am not against the law to start off. I am just wondering, if it would be more humanly to just get in contact with the developer and let him or her know that it is against the law to release into the market a theme which is almost an exact replica of their website layout or social network. Besides I am sure that the developer never had any intention to break the law especially when it was released into the market as a FREE WordPress theme for the whole community out there to use.

    Being that Facebook is a Billion dollar company it would be very nice of them to put to practice the human side of US, forgive him and maybe educate the developer on what is the proper and legal way of developing Themes/ templates. I am sure that they are not going to go broke from this.

    What happen to us in this world, nowadays it is all about how much are you going to sue someone out in this world for. How much is enough? We should all get together and help one another not just sue one another for just about anything that we do in life. Some action are warranted for suing but this one ?????
    Kind regards
    Manuel

  7. If you are silly enough to just steal a design outright, then you had better be prepared to deal with the consequences of your actions. It’s not as though this was an inadvertent mistake, or attempt at fair use, it was a blatantly direct rip. I’d love to know what went on behind the scenes, as I’d have thought Facebook would request the theme be taken down and an apology given for stealing it, and that would be the end of it rather than it going directly to legal action.

  8. What ever happened to mimicry being the sincerest form of flattery?

    If I was as big and as powerful as Facebook and someone copied my design like that, I’d be flattered and the theme developer would have made himself a new friend.

    I understand the legalities of it all, but I don’t see why such an iron fisted approach is required.

    Mildly related, this has really put a dent in my plan to make an OS X theme for WP. :-(

    I was really looking forward to making it but now I’m wondering if it’s a good idea.

    • @ Tony Djukic I agree with you and it is sad that someone like Facebook is taking on a single person who one day decided, hey I love facebook and so do many millions of users worldwide; Why not develop a theme for WordPress and share with the rest of the world how wonderful the Facebook layout is. That on it’s own is already free publicity for Facebook. They could simply say if you want to use our layout for your theme then kindly put a link on the footer saying that it belongs to Facebook :) even more free publicity….

      Kind regards

    • Mimicry being the biggest form of flattery? Wow. I’ve never heard that one when referring to someone cloning a site design without the owners permission. It’s not flattery and you’d be hard pressed to find any good designer who would agree that a one for one clone of their design without their permission is something they’d appreciate and consider it flattery.

      Finding inspiration in a design, creating something that is a take off of another design while at the same time has been made your own is one thing. If done well it can be flattering.

      A completely cloned design made to look exactly like the source of your inspiration is not flattery. It’s pathetic.

      Why such an iron fist? Because when you are a serious business you have to protect your brand and your brand identity. That’s just how it is. If you don’t, it makes it difficult down the road to do so after you set a precedent of not doing so.

      As for the question as to why the legal action rather than simply asking him to remove it, typically in these situations they would send a cease and desist. It could have been brushed off and ignored by the developer who thought it was no big deal like some of the commenters on here appear to think as well. Guess he was wrong.

    • WordPress and the Automattic team can do whatever they’d like with the WordPress theme repository. That’s their website and their service, and it has absolutely zero bearing on whether or not this kid violated copyright law.

      • You conflate Automattic with the WordPress project. Automattic has no bearing over nor liability in the official Theme repository. Just wanted to clear that up.

        Now, as to why the repository guidelines are relevant: if Facebook would sue a no-name developer who created a clone Theme, do you think Facebook wouldn’t sue the WordPress Foundation for distributing that Theme via the official repository? Whether Facebook is in the right or in the wrong (and I think they have both a valid copyright claim and a valid trademark claim here), the case still demonstrates why such a policy is both correct and wise.

        • “I think they have both a valid copyright claim and a valid trademark claim”
          Oh really? Would you care to expand on what exactly is valid in their copyright and trademark claims?

          • Honestly? No. I have more important things to do than to get into yet-another-drawn-out copyright/trademark argument. Try reading relevant copyright and trademark law. What I’ve researched has informed my decision; I’ll leave it at that.

          • Well, I’d like to think I have read plenty about copyright and trademark laws to consider my opinion informed enough. Since you already had nothing better to do than to post an info on WP Depository policies, which was irrelevant to this issue I might add, I can see why you’d now want to be more sparing with your time.

    • Good to hear the theme repository is banning themes like this.

      A specific rule shouldn’t be required since it clearly violates copyright. But based on the comments here in this blog post, many people don’t seem to understand what is and isn’t allowed legally so I guess clarifying it is necessary.

  9. Yeah, right. About.com is suddenly a legal authority.
    Design is not copyrightable at least in USA. In fact, if Facebook ever asked for a copyright registration for the look of there design, they’d be laughed out of town. Look up the famous case of Apple vs. Microsoft if in doubt.

    Facebook is bullying people – plane and simple. Beats me why they’d want to do that.

  10. If Facebook did indeed sue him, that just goes to show what a nasty company Facebook is. In those types of cases it is customary for a company to either send a DMCA takedown notice and/or issue a cease-and-desist letter, and to get a court order to block if immediate action is necessary, but to sue the guy out of the fate? WTF!

    Suing before this guy has a chance to be notified and/or make a remedy is just wrong. It’s such as disproportionate response that it’s unethical, at least on the face of it (pun intended.) But then based what I’ve seen of Facebook’s past action, I would expect exactly this.

  11. I think Facebook is way over the top. After all Facebook isn’t just another theme for a website. It’s its own thing, a kind of internet celebrity. Imitating it is like parodying Paris Hilton, not like stealing from another theme developer.

    What about all those funny icons of Coca Cola and Pepsi? Are they going to sue people too?

  12. This might actually be good for Ainun. How many people knew about him prior to this suit? How many people recognize his name now? Of course if he actually ends up paying facebook, that won’t be so good.

    Not all bad news is all bad.

  13. Pingback: Wordpress Theme like FaceBook Timeline | Cristian Iosub

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