Internet Archive malfunction leads to interesting DMCA and infringement case

Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, — F.Supp.2d —-, 2007 WL 2085358 (E.D. Pa., July 20, 2007). [Download the opinion]

(This case has been pretty well covered already in the legal blogosphere, including here and here, but this is my $0.02 anyway.)

Plaintiff Healthcare Advocates sued defendant law firm Harding, Earley Follmer & Frailey, as well as a number of attorneys and staff at the firm for copyright infringement and violation of the anticircumvention provisions of the Digital Millennium Copyright Act (“DMCA”). The defendants moved for summary judgment, asserting that the alleged infringement was excused under the doctrine of fair use, and that the alleged conduct under the DMCA did not constitute a “circumvention” as contemplated under the statute. The court granted the defendants’ motion for summary judgment.

The dispute between the parties arose from a novel factual scenario. The defendants used the Internet Archive’s Wayback Machine to access cached versions of the plaintiff’s website. A few days earlier, the plaintiffs had configured a robots.txt file to be used in connection with their site, which should have – in the normal course of operations – prevented the web pages from showing up in the Internet Archive. [More on robots.txt files] But as it turns out, the Internet Archive’s servers were malfunctioning when the defendants conducted their searches, so the pages that should have been excluded under the instructions in the robots.txt file showed up anyway.

The plaintiff claimed that by viewing the archived pages on their office computers without authorization (such lack of permission stemming from the exclusion instructions in the robots.txt file), the defendants violated the plaintiff’s exclusive right under 17 U.S.C. §106 to publicly display their copyrighted works, thereby committing infringement. And by accessing the cached versions in spite of the robots.txt file, the plaintiff argued, the defendants circumvented a technological measure used to prevent access to a copyrighted work, in violation of 17 U.S.C. §1201.

The court agreed that the plaintiffs established the two necessary elements of copyright infringement, namely, (1) ownership of valid copyrights in the web pages, and (2) that the defendants, by viewing the web pages on their office computers, violated the exclusive display right under §106. But the court went on to determine that there was no infringement, because the use made by the defendants was a protected fair use.

On the fair use question, the most significant factor in the court’s analysis was the “purpose and character” of the subsequent use that the defendants had made. The defendants had viewed the archived web pages in connection with their work in defending their client against allegations of infringement in another case brought by Healthcare Advocates. In holding that this investigation of the plaintiff’s online materials was a permissible fair use, the court stated that “[i]t would be an absurd result if an attorney defending a client against charges of trademark and copyright infringement was not allowed to view and copy publicly available material, especially mater that his client was alleged to have infringed.”

As for the DMCA anticircumvention claims, the court held that because the malfunctioning of the Internet Archive servers made it such that the exclusion instructions in the robots.txt file were not present, there was no protective measure in place to be circumvented. Plaintiffs had argued that even though the protective measure was not in place, defendants should have known that they did not have permission to view the cached pages, as some of the requests were met with messages that the page was blocked by the website owner. The court rejected this argument, and, nodding to the case of I.M.S. Inquiry Mgmt. Sys., Ltd. v. Bershire Info. Sys., Inc., 307 F.Supp.2d 521 (S.D.N.Y. 2004), held that a lack of permission is not circumvention under the DMCA.