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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 has not shown that the Harding firm viewed any images that they were not entitled to see. The facts show that the Harding firm made requests via their web browsers to the Wayback Machine to view archived web pages, and those requests were filled. (Pl's Mot. Partial Summ. J. Ex. D, Riddle Dep. at 117; Ex. E, Titus Dep. at 67-8.) Kimber Titus testified that she typed the web address she sought into the Wayback Machine, hit the "Take Me Back" button, and a list of screenshots available for viewing was presented. (Pl's Mot. Partial Summ. J. Ex. E, Titus Dep. at 68-89.) She clicked on the dates individually, and when an image appeared on her computer screen she printed a copy. (Id. at 78.) Ms. Titus testified that sometimes clicking on a date returned the "Robots.txt Query Exclusion" message. (Id. at 107.) When this occurred, she clicked on the link that said "search here for all pages," and was provided with the list of dates from which she continued searching. (Id.) No evidence has been presented showing that the Harding firm did anything to get past the blocking mechanism. The facts show that the Wayback Machine gave Ms. Titus the ability to view archived screenshots of Healthcare Advocates' website. No evidence has been presented showing that the Harding firm exceeded that access. The facts do not show that the Harding firm did anything other than use the Wayback Machine in the manner it was intended to be used. Gideon Lenkey testified that the Harding firm accessed the Internet Archive's website with only an ordinary web browser, they did not employ any special tools. (Pl's Mot. Partial Summ. J. Ex. G, Lenkey Dep. at 61.) He wrote that the Harding firm obtained these images because Internet Archive's servers experienced a condition that made them forget about protective controls. "On some occasions and for reasons unknown these two servers would determine that robots.txt file did not exist on the HCA site and on those occasions would
deliver the protected content." (Pl's Mot. Partial Summ. J. Ex. G, Report of Gideon Lenkey at 6.) The Harding firm only viewed the archived screenshots that the Wayback Machine provided. As the facts do not show that the Harding firm exceeded the access provided, Plaintiff attempts to convince this Court that determination of this issue must focus on the fact that the Harding firm viewed archived screenshots that the copyright holder did not want them to see. Healthcare Advocates argues that the Harding firm's access was unauthorized because the images were viewed without its explicit permission. This fact is irrelevant. The statute only penalizes persons who exceed authorization. The Harding firm was given the power to view the images by the Wayback Machine. While the screenshots may have been returned in error, they were ultimately provided. The Harding firm requested archived images from Internet Archive's database, and those requests were filled. The Harding firm got lucky, because the servers were malfunctioning, but getting lucky is not equivalent to exceeding authorized access. Healthcare Advocates cites Southwest Airlines v. Farechase, Inc.,318 F.Supp.2d 435 (N.D.Tex.2004), as relevant to this case. In that case, the court found that Southwest had sufficiently stated a claim under the CFAA by showing that a person who was given access to fare and price information on Southwest's website had repeatedly used scraping software to steal that information for use on his own website. Id. at 439-40. In that case, the defendant had agreed not to scrape the information, and the court found that these facts sufficiently alleged a claim under the CFAA. Here, the evidence shows that the Harding firm received the messages stating that the images were blocked. But, unlike the defendant in Southwest, the Harding firm took no action after they were informed that they were not authorized to see those screenshots. A cursory review of applicable case law shows that defendants need to do something more than merely using a public website in the manner it was intended to be liable under the CFAA. See Morris, 928 F.2d at 508 (transmission of worm was access without authorization); Int'l Airport Centers, L.L.C. v. Citrin,440 F.3d 418, 419-20 (7th Cir.2006) (employee who downloaded secure erasure program to his computer at work would be exceeding authorized access under CFAA); EF Cultural Travel v. Zefer Corp.,318 F.3d 58, 62-63 (1st Cir.2003) (explicit statement on website restricting scraping could establish that defendant who scraped information exceeded authorized access); United States v. Mitra,405 F.3d 492, 494-495 (7th Cir.2005) (interference with computer based radio system used by police, fire, and ambulance was unauthorized access). Healthcare Advocates has not provided evidence showing that the Harding firm intentionally exceeded their authorized access. Summary judgment must be granted in favor of the Harding firm on count III of the Second Amended Complaint. Healthcare Advocates' Motion for the same is consequently denied. D. Common Law Conversion and Trespass to Chattels Claims
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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