Tuesday, July 24, 2007

Law firm's use of Internet Archive is noninfringing

Healthcare Advocates Inc. v. Harding, Earley, Follmer & Frailey (E.D. Pa. 2007): The court dismissed copyright infringement, DMCA, and Computer Fraud & Abuse Act (CFAA) claims against a law firm for accessing archived pages through the Internet Archive; because of an apparent glitch, the IA's servers were not at the time checking to see if a robots.txt header had been added to previously archived material, as it had been to the Healthcare Advocates site. The court's fair use analysis is a little unusual, if only because it doesn't use the magic word "transformative" (and there's also discussion of the ways in which this particular "public display" really doesn't resemble the public displays at the core of the display right) but the court gets the right result without much difficulty. There's not much caselaw cited, not even Bond v. Blum, 317 F.3d 385 (4th Cir. 2003), a fair use-in-ligitation case almost directly on point, and maybe that's a strength -- without getting too bogged down in fair use arcana, the court reasons its way afresh to the obvious conclusion.

My question is whether the court should have dignified the argument with as much analysis as it did -- it should not take forty pages to deal with these arguments. The basic claim was that it was infringing and otherwise unlawful for defendants to view, automatically cache, and print screenshots of the website of a party who'd sued their client based on alleged infringement of that very website. Plaintiffs here went beyond chutzpah and should have to pay defendants' fees. Some of the arguments seem sanctionable, as for example the claim that failure to preserve the temporarily cached copies of the site created by using the Internet Archive -- by immediately taking the relevant computers out of service -- "shocks the conscience" and constitutes spoliation of evidence; this type of argument is why many laypeople think the law is an ass.

As the court points out, in the underlying lawsuit, plaintiffs hadn't attached any copies of their allegedly infringed website. It would have been malpractice for defendants to fail to visit it and to look for older versions -- which turned out to be quite useful in the defense of the underlying lawsuit, because the older versions apparently did very little to support plaintiffs' claims. The present lawsuit is harassment, pure and simple; plaintiffs were embarrassed by the prior contents of their website and really wish defendants hadn't been able to use it against them. Copyright law doesn't just have a bad name because people like free music -- though that surely plays a role -- it has a bad name because enough courts have made enough expansive decisions that this court thought it had to work carefully to explain why this ridiculous claim was different. And the same with the DMCA and CFAA claims, in spades.

One other notable holding: in these circumstances, the court said, robots.txt is a technological measure that effectively controls access to a work. I don't think this is right (though I can see how robots.txt creates difficulties in the already shaky division between Corley and Lexmark), and I sure don't see how this holding can be limited to these circumstances, as the court says; under what circumstances would the court's reasoning not apply? I worry about the next stupid lawsuit when someone sues the Internet Archive for having malfunctioning servers that don't always respect robots.txt. (IA was sued here, but was dismissed from the case by stipulation.)

1 comment:

  1. If anyone here tried to engage in spoliation, it was the plaintiff. Using the robots.txt file to cause the Internet Archive to flush its old copies of your site information so the other side can't look at them in an infringement action . . . that doesn't sound good.