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Comment by _fat_santa | Hacker News Reader

I wonder. With these floor plans being so vague, could the defendants being sued for copyright infringement just argue that these copyrights were so vague that they accidentally copied them?

That is, say there is a plan on their site for a 2BD/2BA house, the floor plan is very simple and a builder that is unaware of this company ends up copying the floor plan for no other reason that it happens to be a very common floorplan. Could this company still pursue damages?

When we think of copyright we often think of companies like Google copyrighting the word "Google". Now you can't go out and use "Google" in your own work, it's pretty dang obvious. But what if Google copyrighted the "Google Grilled Cheese Sandwich" which is just a regular grilled cheese sandwich, could they really go after folks who just happened to make the exact same grilled cheese sandwich just because making one is pretty obvious.

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One regrettable thing that seems to happen here a lot is that pedants will swarm to address some relatively irrelevant misunderstanding made in a genuine question relevant to the article without ever addressing the question being asked.

I think the commenter gets it, Christ for the fifth time now yes, there's a difference between copyright and trademark. You can't copyright a word, got it. Now that we have that bit of pedantry thoroughly out of the way, I have the exact same question as the one above:

>That is, say there is a plan on their site for a 2BD/2BA house, the floor plan is very simple and a builder that is unaware of this company ends up copying the floor plan for no other reason that it happens to be a very common floorplan. Could this company still pursue damages?

Clean room reverse engineering is a valid protection against copyright claims. So as long as whoever drew the plans didn't know about the original they are safe. Even if the builder had a copy of their plans and gave whoever did the drawings leading instructions to get them to draw something similar to the original.

That's probably why they mass mail these plans to homebuilders, to make it harder to prove they didn't copy

So when you start up a home building company, first thing you do is have your IT guy set up a mail filter to block receiving anything from these arseholes. Order it in writing, and make sure IT guy notes it prominently in his work log.

> That is, say there is a plan on their site for a 2BD/2BA house, the floor plan is very simple and a builder that is unaware of this company ends up copying the floor plan for no other reason that it happens to be a very common floorplan. Could this company still pursue damages?

No. The ruling in this case actually covers this in detail: Proving copyright infringement is a two-step process, first you must prove that something was actually copied and then that the copied portion was substantial enough to constitute infringement. But the first part is a necessary precondition, without copying there's no infringement. They give the example of two comic book authors inventing a character called "Dennis the Menace" independently on the same day.

Floor plans are not copyrightable. The blueprint might be - but that includes things like "Joe's architecture services" which wouldn't be on your copy, and the dimension markings would be in different places (unless the placement is standardized in which case the placement is not creative and thus not copyrightable).

The floor plan is probably subject to patents. I don't think anyone has done this, but I don't see why it isn't possible.

The article (and I'm not sure how accurate this is) seems to be claiming the houses themselves are in violation of DesignBasics' copyrights:

>Now, with these simple, vague floor-plans (not full architectural drawings!) out there for everyone to see… they look for someone to actually build a house that has a similar layout, and then jump in with the lawsuit!

Are they just hoping every builder will settle out of court?

That's pretty much the business model. Cost of settling can be less than the cost of defending the suit.

Every case where someone with pockets deep enough, holds out and gets a judgment against the troll - especially with legal costs included - is a huge blow to their business. And a single case that doesn't go their way is often enough to shut down their business and poof.

Hope one of Design Basics's defendants is in a position to say Enough!

That's probably why floor plans are only for 4 BR or less homes. Middle class, upper middle class maybe. Most likely the kind of people without deep pockets.

More likely to be combinatorial scaling reasons, I would have thought

Could potentially be a design patent, given said plan has some form and specific function that is not obvious.

Potentially, but there are so many houses that it gets hard to find something that won't be laughed out of court.

Right! I agree, and really was just stating the only possibility I see.

> Google copyrighting the word "Google"

You can't have a copyright on a word. You're thinking of another category of intellectual property, trademark. Google has a trademark for the word "Google" but trademarks are for specific uses of words related to the business. The intent of trademark law is a form of consumer protection, you can't fool the public that your product or service is offered by the trademark holder by using the trademarked term.

This is the same reason there can be huge, famous, influential companies with the same name in different industries.

>so vague that they accidentally copied them? //

No, but you're on the right track.

Copyright being a tort, the usual measure of proof is 'balance of probabilities'. That means if you didn't copy, but you _cannot_ prove you didn't, and it looks like you probably did, then a court can find against you.

There is also the notion of distinctiveness, generic, non-creative things don't acquire copyright ("common elements"; trademark has similar aspects, it's hard to word things without confusing the two, they're differently concepts with the same names).

However, in 2012 there was a case in UK law over an image of a London bus, where a re-creation of the image was used commercially. The copyright in the original photo was considered to be infringed despite the image being highly generic (Temple Island V New English Teas, 2012). A lot of people, myself included, are not convinced of this decision (see also Kenrick V Lawrence).

USC and UK law differ, but as copyright is based on international treaties such as Berne Convention and TRIPS you find they're broadly analogous in a lot of ways; I can't comment on where the line lies in USA law.

This is my personal opinion, unrelated to my employment; this is not legal advice.

Nit:. Google is trademarked. Copyright is a different thing.

And pretty sure independent creation is a valid thing. Is how the initial pc clone industry got its start.

Independent creation is a defense to copyright infringement

I can assure you that "Google" never "copyrighted" the word "Google."

You're confusing trademark with copyright.

Google can't copyright "Google". That's not how it works. Google would apply for trademark protection on the wordmark, Google in relation to search and/or advertising. The USPTO has all the details if you can handle searching their site (it's a bit of a mess).

You're confusing the word "copywrite" (to write copy) with "copyright" (the right to make copies of a creative work).

I did make that mistake in one spot.

> When we think of copyright we often think of companies like Google copyrighting the word "Google".

That's trademark.

> But what if Google copyrighted the "Google Grilled Cheese Sandwich" which is just a regular grilled cheese sandwich...

...and this sounds like you're referring to patent protection, which is for an invention.

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