Has the term plagiarism been used before for lifting layouts? Copying to be sure. Look and feel though aren't copyrightable, though yes, copyright is different from plagiarism.
As I tried to make clear, that the css file is stolen straight out, that's clearly plagiarism/theft of that file. And even though the file lacks a copyright notice such notices are no longer strictly required.
The layouts of course look very similar because they are both using the same css to set everything up.
That all said, Helvetica/Arial in menu categories, Georgia as body font and 40px margins is something on a lot of sites. These are quite generic settings. There's not a lot of leeway possible for something like margins, there's a small finite range of reasonable settings. It's expected that many sites will have the same ones.
It's also exceptionally common to have a logo in upper left, section selections to the right, a bar at the top, and text with margins below it. This is a completely standard web layout.
Even seeing everything here exactly the same but with different text, sections and css files, it would no longer be certain to be cloned, but entirely possible to be just another person using a standard web layout with the same settings.
How many typewritten letters have I received with 0.5" or 1" margins? A lot. Sent a lot too. Margin settings are not intellectual property at all, neither is font selection, especially when choosing completely standard web fonts in the same way that is used by many sites. Even if someone did peek at their css and "steal" their 40px setting because they like those margins, it's not theft to do so. Stealing the entire layout by copying the css file, yeah, that's a problem though.
Let's assume I also decided to design a site with the same core layout - a bar on the top with the logo and the menu, content on the bottom, that's not unusual as you point out, but already a coincidence. However, I have to decide on the height of the top bar - is any value between 40 and 60 objectively better than all the other ones so that everyone deciding on this kind of design would settle on the same one? Next step, I decide on a drop shadow below the top bar, again a reasonable coincidence. Again however, a graphic program will typically require to specify the color, the opacity and the radius of the shadow with thousands of combinations possible that look almost the same aesthetically so there is no reason people would pick one over another very often. Then you decide for the color of the highlight of the button, again, there are hundreds of colors that give almost the same effect visually but they "picked" _exactly_ the same one. It's the same with many other small nuances, font size, line height, border color, link color etc.
Even if there would be just 10 rational choices in each step, with 20 steps (both values way underestimated) that's already 10* *20 possible combinations. If you create a design in a space of a 20 dimensions and a total of 10 trillions of possibilities having differences in say 3 of the dimensions cannot serve as a defence. Hence almost always when people bring this argument up a closer examination shows little signs of plain old copy-paste beyond any reasonable doubt, just like the example with google analytics people point out below.
I'm not even sure what you are claiming at this point. We all agree that there was copying in some direction with THIS particular example since the css files are identical. And who knows, maybe they both independently copied from a third party like a library of layouts. But I am presuming C copied from B here and not C and B from A. Regardless, the fact it is identical is far more than coincidence.
As far as using the same web layout as far as having header footer menu and columns it's not even a coincidence, it's just a standard layout. It's not a coincidence that someone else has a red car, they are very common.
I will address the issue of whether a layout that looks similar is definitely a copy. I don't agree with that.
Is using "0px 2px 5px #CCC;" as drop shadow settings proof of copying as you are claiming? Absolutely not. It is not some obscure color, it's GRAY. Gray drop shadows are very common. The assertion that the other settings are too particular or unique among billions of possibilities is completely absurd. You really think this is the only site with this drop shadow setting? I will bet you $500,000 it is not. Warning: I already checked. That is not surprising at all. 0px for horizontal offset is not just common but required for shadows coming from an above light source. 2px vertical offset is common as well. 5x blurring is common as well. The entire combination is common and obvious as well. But let's say some random site has 3px vertical offset instead. It's going to look quite similar to one with 2px. Is it a copy or not then? Can't tell from just that, it's irrelevant in fact. Two sites that look similar on the web, using generic common layouts, are not necessarily copies of each other. Even if they use a lot of the same colors and drop shadow settings and margins, especially when we are not talking about #CCC and not a color like #12dca9. It is also not uncommon to have white background behind text and a single pixel grey border. That is on thousands of sites. As is the light grey background. Google finds "background: #F9F9F9" on over 500,000 pages, many predating the existence of HM's domain name registration. Did they steal background: #F9F9F9 from others? Probably. I mean, why #f9 and not #f8. #F9 is a bit of an odd choice. HNM at least used blue for their masthead background. HM uses: #F60. Where have we seen that exact shade of orange before? Hint: it was "stolen" by HM from the top of this page you are looking at. This leads to another problem. Hacker is a common term. Hacker News is reasonably generic, but it is known as being this site. When I see a site that says "Hacker Monthly, the print magazine of Hacker News" and uses the exact same recognizable color scheme as Hacker News, I definitely assume that it is run by the same company. Only if I scroll down to the bottom do I see a "not affiliated" disclaimer. This is quite confusing given that it claims to be "the print magazine OF Hacker News". That is obvious confusion in the public, and the name, claim to be "of Hacker News", and exact color scheme match is a clear trademark violation.
There are lots of pages that use this particular drop shadow but there are also lots of other possible and very popular variants of this particular setting. I am not arguing any of the settings by itself is likely to be unique, I am arguing that once you have 30 or 50 decisions like that to make, each even with just a few reasonable possibile solutions, it is very highly unlikely two persons will chose the same combination of solutions in the majority of the decisions, even if the CSS to achieve the effect would be different, just because there are so many possibilities. And many decisions are much more arbitrary than the examples shown so far, like choosing the way you present the past issues of your magazine.
If we are sitting next to each other and are told to write down a random 50 character long string built from digits from 1 to 5 and we would end up having the same digits on 30 positions, with long subsequences being the same (= many decisions regarding closely related design parameters being the same), would you be more willing to attribute it to chance or to one of us copying from another?
The random character situation is a false comparison since that is not the case here.
What exactly are you arguing for? My original post makes that point that this is definitely a violation since there IS exact copying of the CSS file. And yes, the copied Google analytics id makes it 100% sure.
We are then arguing not about exact copying of text but about very similar layouts. I am saying very similar layouts are not proof of copying. You are saying they are. OK. That's your position, I have mine. The arguments you have used are weak and rather than concede any of them when their flaws are pointed out you just start making new claims. Therefore this could go on forever and never be resolved. So let's end it, all right?
I do understand you are fascinated with this particular case. Let's talk about that.
I've never seen anyone file a CSS file with the copyright office, therefore it's unlikely this CSS file is filed. That means that, while their copying is illegal and a copyright violation, any lawsuit would result only in actual damages and not statutory damages, per US copyright law. (We'll assume this case gets filed in the US as claims with parties in two different countries are nearly impossible for small concerns to prosecute.) There are no actual damages though, so it's a pointless waste of money to pursue a case.
So what to do? Name and shame, what they are doing here. That's the best approach since they are 100% certain there was copying going on, and any reasonable jury would see that, therefore there is no risk of a defamation claim, they are stating facts.
Is this sufficient? I say no. Who is the person who lazily copied the CSS file rather than be a pro and write his own? His name should be disclosed publicly and he should forever be blacklisted from the industry. That's the way to do it. Who is their layout guy that checked in this file? They need to state his name and particulars so everyone knows to avoid him. His career needs to be over, permanently. That's how to stop the widespread thievery going on. If The Hacker News Magazine will not disclose the name of the person who did this and fire him immediately, The Hacker News Magazine should be boycotted, along with all its affiliates because such behavior can not be tolerated in our industry of creative professionals. If THNM agrees to fire him and disclose his name, and redoes their layout to be original work, then their inevitable CEO apology could be considered sincere. Without firing and disclosure though, any apology would just be an admission they are only sorry they got caught stealing, and such apology could not be considered sincere.
The random character situation is a false comparison since that is not the case here.
It is a useful model of the situation, you have 50 (lets say) decisions to make (border color, margin height, number of images per row, ...), each with 5 (lets say) equally likely outcomes (#666 is quite as good and popular as #777,#888,#555,#444; 1.0em like 1.5 em,0.5em,2.0em,2.5em; ...). All I'm saying is that you cannot explain that many visual and conceptual solutions being the same with chance alone, since that is an event with very low probability if you honestly perform each decision by yourself.
As I tried to make clear, that the css file is stolen straight out, that's clearly plagiarism/theft of that file. And even though the file lacks a copyright notice such notices are no longer strictly required.
The layouts of course look very similar because they are both using the same css to set everything up.
That all said, Helvetica/Arial in menu categories, Georgia as body font and 40px margins is something on a lot of sites. These are quite generic settings. There's not a lot of leeway possible for something like margins, there's a small finite range of reasonable settings. It's expected that many sites will have the same ones.
It's also exceptionally common to have a logo in upper left, section selections to the right, a bar at the top, and text with margins below it. This is a completely standard web layout.
Even seeing everything here exactly the same but with different text, sections and css files, it would no longer be certain to be cloned, but entirely possible to be just another person using a standard web layout with the same settings.
How many typewritten letters have I received with 0.5" or 1" margins? A lot. Sent a lot too. Margin settings are not intellectual property at all, neither is font selection, especially when choosing completely standard web fonts in the same way that is used by many sites. Even if someone did peek at their css and "steal" their 40px setting because they like those margins, it's not theft to do so. Stealing the entire layout by copying the css file, yeah, that's a problem though.