Copyright infringement threshold set at 70%

Bensbargains.net, LLC v. XPBargains.com, No. 06-1445, 2007 WL 2385092 (S.D. Cal. August 16, 2007).

Before we get into this case, I’d like to thank all the long time readers of Internet Cases. Some of you have been with me since the beginning way back in January 2005. Hard to believe, but this is the 300th post to this weblog. Onward and upward!

And now for an interesting copyright decision from California.

Ben Chui searches the web for good deals on products — from pens to mountain bikes — and posts his findings on his website bensbargains.net. In October 2005, Chui noticed that a competing website, XPBargains.com began featuring a lot of the same deals. Chui sued for copyright infringement in the U.S. District Court for the Southern District of California.

XPBargains.com moved for summary judgment. The court granted the motion in part and denied it in part. Although it was largely a win for XPBargains.com, the game ain’t over.

There were two main issues in the case. The first related to whether Chui owned a copyright in the selection and arrangement of the deals he selected. The second important issue was whether XPBargains’s conduct amounted to actionable copying.

On the first issue, whether the collection of deals was copyrightable, the court found that there was Feist originality because the “compilation [was] not an inclusive list of all deals for all products.” Instead, Chui used “his individual judgment to select among multiple deals for various product.”

As for actionable copying, the court held that some of XPBargains’s postings were similar enough to Chui’s selections to raise a triable issue. Interestingly, the court set that threshold at 70%. (It’s unusual for a court to be so mathematical.) For those instances where the number of identical selections appeared on both Chui’s site and XPBargains.com, the court held that the question of infringement could continue to trial.

Opinion appears below (or click through if it’s not showing up in the RSS feed):