Monday, September 21, 2009

Bratz Revisted

In the continuing case of the Bratz doll, the Ninth Circuit recently ruled in the case of Art Attacks Ink, LLC v. MGA Ent'mt. Inc. While the case dealt with several issues, of interest to me is the portion of the ruling dealing with whether Art Attacks had proved adequate access to their character that they sold at fairs and on their website.

In the opinion, the court went out of its way to note technical weaknesses of the website as evidence of the small likelihood that there has been any access to the designs. In particular, the court noted that it "took a full two minutes" for the website to fully load; and that the website did not use meta tags that contained the words "Spoiled Brats." The court then drew the conclusion that:
    A website with such limitations could not have widely disseminated the copyrighted Spoiled Brats material.

It is not clear from the opinion how this analysis of load times and meta-tag relevancy was conducted. While I would agree that it is relevant if the load times mentioned were from 2009; it appears that the time referenced is from the late 1990's, when the site first went live. Consumer's patience with load times has un-questionable changed over that time period and a two minute wait may have been perfectly reasonable in 1996. Additionally, it is not clear why the court thinks that information must be contained in meta-tags in order to be relevant to search engines (a fact many SEO folks I'm sure would like to question.)

While I have doubts that Art Attacks could prevail in its underlying case, the court using this questionable understanding of the how meta-tags and search engines works, and their current day expectations of speed, really create a flawed ruling. It would be unfortunate if trial courts recognized this opinion as a demonstration that a website must contain specific terms in its meta-tags to be relevant in showing possible access in copyright litigation.

UPDATE: Court issues injunction related to enforcement of decision.