Theft of Website Code

[Note to our readers: This is day three in our anti-celebrity week and the effects are beginning to be felt by the Dear Rich staff: one staffer has departed for a research job at TMZ, another was found watching DWTS, and a third was caught reading about Lindsay Lohan's possible restraining order on her iPhone. For those of you who've taken up our challenge, remember: one day at a time.]  

Dear Rich: A competitive website stole my website design and code. Their site looks nearly exactly like mine except that they changed the colors. They even have my programmer's comments in their HTML. It took me weeks to come up with a unique and professional-looking design that I was happy with, and I coded my site entirely by hand. I'm so angry about this. They're basically using my hard work to attract customers... and even taking some business that I could be getting as we offer the same service! I wrote to them, but they're ignoring my emails. Would this constitute an infringement? Is there anything, short of a lawsuit, that I could do to make them change their website design? I'm so glad you asked. The short answers are: (1) it is probably an infringement; and (2) if they are blowing off your letters, they will most likely not stop unless you hire an attorney (and even then, there are no guarantees).

We respect your hard work coding your website by hand. But you should be aware that rights are not granted for "sweat of the brow." You will only have a defensible copyright if your code is original (and meets other copyright standards) and you can prove your competitor had access to your work and copied it (which sounds like it's not too difficult). The Dear Rich staff recommends that you preserve all evidence of the infringement by creating snapshots of their site and its underlying code. File a registration for your website code and appearance. You can review the rules in Circular 66: Copyright Registration for Online Works (PDF). That will cost under $50 and may take several months to issue. (If you can afford it and plan to sue, consider expediting the copyright registration). You have copyright regardless of whether you register, but you will need the certificate to file a lawsuit (and the presence of the certificate sometimes sways infringers).

You may also have other claims besides copyright infringement against your competitor, who may be violating state and federal unfair competition laws which prohibit businesses from acting unfairly or deceiving consumers. Your choices of action are:

1. Write another letter to the website owner and explain that you have applied  for copyright registration. Don't threaten a lawsuit.  Instead, state the basis for your claims, what you want changed (or how else you want the matter resolved), and something to the effect that "you believe this can be resolved without litigation, but if it cannot, you are prepared to pursue your legal options." That language may prevent a declaratory action, an attempt by the other side file against you in its local court house.
2. Consult with a lawyer and have the lawyer write a cease and desist letter. This is most likely to have an effect.
3. If the website is hosted by a third-party online service provider, you can take the approach shown here. However, if the other side challenges you with a counter-notice, you will have to file a lawsuit to back up your claims.