Case against Internet Archive and Brewster Kahle proceeds in Colorado federal court

[This case came down over a month ago, but is worth writing about. Read more coverage about it here.]

Suzanne Shell, the owner of the website profane-justice.org, discovered that multiple copies of her site had been added to the Internet Archive. She threatened the Internet Archive with litigation, invoking her site’s terms of use which included provisions that purported to charge users $5,000 each time they made a copy of a page on the site. The terms included a bunch of other onerous provisions as well, purporting to impose a number of draconian penalties on Internet users making unauthorized copies of the website.

Wayback Machine

In response to Shell’s threats of litigation and demands for payment, Internet Archive filed a declaratory judgment action in the Northern District of California, seeking a determination that its activities did not infringe Shell’s copyright. The action was later transferred to the District of Colorado.

Not surprisingly, Shell filed several counterclaims against the Internet Archive and members of its board of directors. She alleged causes of action for copyright infringement, conversion, civil theft, breach of contract, and racketeering under RICO and the corresponding Colorado statute.

Internet Archive filed a 12(b)(6) motion to dismiss the conversion, civil theft, breach of contract and racketeering claims. The court dismissed all but the breach of contract claim.

In dismissing the conversion and civil theft claims, the court held that although the claims were not preempted by the Copyright Act (as each claim included at least one element not included in a prima facie case of infringement), Shell failed to allege facts sufficient to support the causes of action. As for the conversion claim, it was undisputed that the Internet Archive had complied with Shell’s request to remove the cached pages from the archive. Accordingly, Shell would not be able to prove that the Internet Archive refused to return any property to her. Moreover, Shell had failed to allege that Internet Archive exercised dominion or control over her website, since it was undisputed that she continued to own and operate the site when it was archived.

The racketeering claims failed because Shell failed to allege that Internet Archive was involved in any racketeering enterprise.

So that left the breach of contract claim, the only claim to survive the motion to dismiss. Shell contended that Internet Archive entered into a contract with her when it copied her web pages, and that it breached that contract when it failed to pay her according to her terms of use. Internet Archive argued, on the other hand, that it did not learn about the terms of service until after it copied the pages, and accordingly there was no mutual assent to the terms. Furthermore, there was no human acting on behalf of Internet Archive to copy the pages, just the automatic crawler. Internet Archive argued that without actual knowledge, there could not be an enforceable contract.

The court rejected Internet Archive’s argument at this stage of the litigation, however, determining that the factual question of whether it knew about the terms could not be determined on the record before the court. Shell had satisfied the pleading requirements for federal litigation, by alleging the existence of a contract, breach and damages, which was sufficient to make out a claim for breach of contract.

Internet Archive v. Shell, (Slip Op.) 2007 WL 496680 (D.Colo., Feb. 13, 2007)

Suzanne Shell has been involved in other copyright litigation recently. Read more here. As has the Internet Archive and its founder Brewster Kahle. Read about that here.