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HEALTHCARE ADVOCATES v. HARDING, EARLEY, FOLLMER
497 F.Supp.2d 627 (2007)
United States District Court, E.D. Pennsylvania.
July 20, 2007.
Healthcare Advocates also believes I.M.S. Inquiry Mgmt. Sys., Ltd., v. Berkshire Info. Sys., Inc.,307 F.Supp.2d 521 (S.D.N.Y.2004), is relevant to this civil action. But, in that case, a New York federal district court found that the unauthorized use of a password did not constitute circumvention under the DMCA. Id. at 530-33. While the defendant was not given permission to use the password from the password owner, the court held that his action was not a circumvention of the password protection. Id. at 532-33. That court found that the defendant's actions did not avoid or bypass the password protection even though those terms were meant to be interpreted broadly. Id. That court noted that what the defendant avoided was the permission to use the password, and that was not the situation the DMCA was written to address. That court said that the DMCA deals with situations where the digital walls guarding copyrighted material are avoided. Id. That defendant did not avoid the wall, rather he simply stole the key and opened the door himself. Neither of these cases lend support to Plaintiffs assertion. These cases do not stand for the proposition that Plaintiffs robots.txt file was circumvented merely by the Harding firm making requests via the Wayback Machine. The Harding firm did not use alter code language to render the robots.txt file void like the defendant in Corley did with the encryption. They did not "pick the lock" and avoid or bypass the protective measure, because there was no lock to pick. Internet Archive's servers said that no lock existed when the requests were made. Nor did the Harding firm steal passwords to get around a protective barrier like the defendant in the I.M.S. case. No protective wall existed according to the Wayback Machine. The Harding firm could not "avoid" or "bypass" a digital wall that was not there. The court in the I.M.S. case said that a lack of permission does not constitute circumvention under the DMCA. Simply making further requests
is not circumvention under the DMCA. Healthcare Advocates' inference that the Harding firm should have known that they were not allowed to view any archived images via the Wayback Machine is both unreasonable and irrelevant. Mr. Riddle and Ms. Titus testified that they knew some of the images they tried to access were blocked. (Pl's Mot. Partial Summ. J. Ex. D, Riddle Dep. at 123-24; Ex. E, Titus Dep. at 78-80.) When the screenshot was blocked, the Wayback Machine returned a message stating that the page was blocked by the website owner. (Pl's Mot. Partial Summ. J. Ex. C, printout of "Robots.txt Query Exclusion" page; Ex. D, Riddle Dep. at 139; Ex. E, Titus Dep. at 107-09.) The message also included links, one of which said, "Try another request or click here to search for all pages on healthcareadvotates.com." (Pl's Mot. Partial Summ. J. Ex. C, printout of "Robots.txt Query Exclusion" page.) Ms. Titus testified that when this page appeared, she clicked on the link and received a list of all available screenshots, which she viewed and printed. (Pl's Mot. Partial Summ. J. Ex. E, Titus Dep. at 107.) Even if it the Harding firm knew that Healthcare Advocates did not give them permission to see its archived screenshots, lack of permission is not circumvention under the DMCA. The Harding firm did not circumvent the robots.txt file utilized by Healthcare Advocates. Making requests for archived images via the Wayback Machine, even after some requests were denied, is not avoiding or bypassing the measure. The facts show that the Harding firm received the archived images solely because of a malfunction in the servers processing the requests. The Harding firm is therefore granted summary judgment on count I of Plaintiffs Second Amended Complaint. Healthcare Advocates' Motion is consequently denied. C. Computer Fraud and Abuse Act Healthcare Advocates alleges that the Harding firm exceeded its authorized access by merely viewing archived screenshots of Healthcare Advocates' website via the Wayback Machine. (Compl. ¶ 85.) The CFAA is the centerpiece of federal enforcement efforts against computer based crimes. The statute makes it a crime to "intentionally access[] a computer without authorization or exceed[] authorization, and thereby obtain[] information from any protected computer if the conduct involved interstate or foreign communication[.]" 18 U.S.C. § 1030(a)(2)(C) (2007). "[T]he term `exceeds authorized access' means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter[.]" 18 U.S.C. § 1030(e)(6). A protected computer is one "used in interstate or foreign commerce or communication[.]" 18 U.S.C. § 1030(e)(2)(B). Under the statute, "Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief." 18 U.S.C. § 1030(g). "A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in clause (i), (iii), (iv), or (v) of subsection (a)(5)(B)." Id. Subsection 1030(a)(5)(B)(i) imposes a requirement that the party bringing the claim must suffer a loss "during any 1 — year period . . . aggregating at least $5,000 in value[.]" "Damages for a violation involving only conduct described in subsection (a)(5)(B) (i) are limited to economic damages." 18 U.S.C. § 1030(g).
1. A screenshot is an image taken by the computer to record the visible items displayed on the monitor or another visual output device. Usually this is a digital image taken by the host operating system or software running on the computer device, but it can also be a capture made by a camera or a device intercepting the video output of the computer. Wikipedia, The Free Encyclopedia, "Screenshot" available at http://en.wikipedia.org/wiki/ Screenshot. 2. § 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. 3. § 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. The Second Circuit has said, "[t]he doctrine of fair use . . . permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Iowa State Univ. Research Found., Inc. v. Am. Broad. Co.,621 F.2d 57, 60 (2d Cir.1980). 4. It should be noted that the alleged infringing activity happened two weeks after the complaint in the Underlying Lawsuit was filed. Healthcare Advocates did not attach the materials that defendants, clients of the Harding firm, were alleged to have infringed. The defendants were not informed about what exactly they were alleged to have infringed. Acting prudently and reasonably, the Harding firm attempted to find all publicly available information on Healthcare Advocates in their efforts to decipher the allegations contained in the Complaint. 5. INTERROGATORY NO. 15Explain when and how HEFF first became aware that information relating to the conduct of its representatives on July 9, 2003 and July 14, 2003 as alleged in the Complaint may be relevant to the Underlying Action. 6. Copies of the archived screenshots were submitted to this Court in camera during the Underlying Litigation. Healthcare Advocates' has not claimed that this action by the Harding firm constitutes infringement of their copyright rights. According to a leading treatise on copyright law, no court has found that presentation of the copyrighted works to a court on which the infringement action is brought constitutes an instance of infringement. 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyrights, § 13.05[D][2] (2003). This Court is not of the opinion that this action would be infringement, but a claim to this effect has not been raised, so this Court need not fully address the question. 7. § 301. Preemption with respect to other laws
(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
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