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.