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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.
Internet Archive's adherence to the robots exclusion protocol provided two benefits to website owners in practice. First, for those websites that did not have a robots.txt file present at the website's inception, but included it later, Internet Archive would remove the public's ability to access any already archived screenshots stored in its database. The archived images were not deleted, but were instead rendered inaccessible to the general public. Second, the crawler employed by Internet Archive would be instructed not to gather screenshots of that website in the future. Those were the terms of the exclusion policy in effect when Healthcare Advocates placed a robots.txt file on its website. Healthcare Advocates had not included a robots.txt file on its website prior to July 7, 2003. Consequently, Internet Archive's database included screenshots of Healthcare Advocates' website. Kevin Flynn, president of the company, remembered first placing a robots.txt file on the website on either July 7, 2003, or July 8, 2003. He is unsure of the exact date. Once the file was included, Mr. Flynn expected that the public would be denied access to any archived images of Healthcare Advocates' website stored in Internet Archive's database in accord with the exclusion policy. Normally, the public would have been denied access. However, on the dates in question Internet Archive's servers malfunctioned, and provided Healthcare Advocates archived images to those who requested them. The images were blocked through an automated process. When requests were made via the Wayback Machine, the servers automatically checked to see if a robots.txt file existed on the website which was the origination of the archived images being requested. If a robots.txt file was present, then the Wayback Machine would return a message stating that the archived images were blocked by the website owner via a robots.txt file. Internet Archive blocked the archived screenshots on an all or nothing basis. If a website owner blocked any portion of his website, then public access was denied for all web pages contained in the database. But, when the Harding firm used the Wayback Machine on July 9, 2003, and July 14, 2003, the servers which checked for robots.txt files and blocked the images were malfunctioning. Internet Archive's servers did not respect the robots.txt file on Healthcare Advocates' live website. Thus, the Harding firm was able to view and print copies of archived screenshots of Healthcare Advocates' website stored in Internet Archive's database. Plaintiffs' expert, Gideon Lenkey, has testified that the Harding firm was able to view archived screenshots of Healthcare Advocates' website because the servers at Internet Archive were not respecting robots.txt files. Mr. Lenkey also testified that the Harding firm did not engage in "hacking." Kimber Titus and Charles Riddle, two of the individuals who used the Wayback Machine, for the Harding firm, testified that they followed the procedure outlined above in conducting their searches. However, Healthcare Advocates does not believe that the Harding firm followed the standard practice used to search archived screenshots via the Wayback Machine. Healthcare Advocates claims that the Harding firm circumvented the protective measure it had in place.
Circumventing an electronic protective measure violates federal law. Thus, Healthcare Advocates brought this Civil action against the Harding firm, Internet Archive, and various John Does. The Complaint was filed on July 8, 2005 and contained thirteen counts. Seven of those claims were dismissed by Order of this Court on October 4, 2005. Healthcare Advocates filed a Second Amended Complaint on May 30, 2006, composed of thirteen counts against the Harding firm and Internet Archive. Internet Archive was dismissed by stipulation on August 31, 2006, and with it counts VIII through XIII. Healthcare Advocates has voluntarily dismissed counts IV and VII. All remaining claims, counts I, II, III, V, and VI, are addressed in this Memorandum.Count I of Healthcare Advocates' Second Amended Complaint alleges a violation of the Digital Millennium Copyright Act ("DMCA") which prohibits the circumvention of protective measures that restrict access to copyrighted works. In count II, Healthcare Advocates alleges that the Harding firm infringed on its copyright rights by viewing and printing copies of the archived images of the Healthcare Advocates' web pages, by unknowingly saving copies of these web pages in temporary files known as caches, and by distributing the images to their cocounsel in the Underlying Litigation. Count III states a claim against the Harding firm for violating the Computer Fraud and Abuse Act ("CFAA") by intentionally exceeding their access and obtaining information from protected computers used in interstate commerce. Counts V and VI are for conversion and trespass to chattels under Pennsylvania's common law. This Civil action is presently before this Court on the Motion for Summary Judgment of the Harding firm on all five claims, and the Motion for Partial Summary Judgment of Healthcare Advocates on only the DMCA and CFAA 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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