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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.
The Harding firm's purpose in viewing and printing copies of the archived images of Healthcare Advocates' website was primarily to defend their clients. The Harding firm viewed these archived web pages to assess the merit of the claims brought against their client. They hoped they might discover facts allowing them to refute the allegations. Charles Riddle stated in his deposition that he used the Wayback Machine to find out what the complaint was talking about, as he was unsure of the alleged infringement from
the face of the complaint. (Def. Mot. Summ J. Ex. I, Mohr Dep. at 118.) Healthcare Advocates did not specify what had been infringed, nor did it attach any documents to the complaint in the Underlying Litigation showing infringement. The Harding firm viewed the documents on their computers because that was the method by which the Wayback Machine worked. Recent case law on public display in the Internet era is relevant to this Civil action. In the cases below, website owners infringed display rights by making copyrighted work, usually pictures, of another available for the public to view on their websites without the consent of the owners. The infringers also usually charged a fee. See On Command Video Corp., 777 F.Supp. at 787-91; Playboy Enters., Inc. v. Frena,839 F.Supp. 1552 (M.D.Fla.1993); Perfect 10 v. Google, Inc.,416 F.Supp.2d 828 (C.D.Cal.2006) (affirmed in part, reversed in part at Perfect 10, Inc., v. Amazon.com, Inc.,487 F.3d 701 (9th Cir.2007)). Users of the infringers' websites were able to view and sometimes save the copyrighted images on their own computers. The Harding firm did not use the copyrighted images in a manner similar to the infringers in the above cases. The Harding firm did not make these images available to others on any website. They viewed them in their offices. Those cases do not address the situation here. In this civil action, only other members of the firm were able to see the images on the computer screens in the Harding firm's offices. While other members of the Harding firm were able to see the images, the Harding firm did not purposefully display them to others. The public display was a result of the Harding firm viewing the images in their offices. Only a small group of additional employees were able to see these images. This group is similar to a family circle and its acquaintances. The statute says that public display is a showing to a group outside this family circle or acquaintances. 17 U.S.C. § 101. The Harding firm's conduct is not similar to the situations where courts have found that individuals were liable for infringing the right of public display. The purpose behind printing the archived images was to make a record of what was viewed. The Harding firm copied these materials as supporting documentation for the defense they planned to raise for their clients against the allegations. It 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 material that his client was alleged to have infringed.4 The Harding firm also recognized that the material was relevant to the case as soon as they saw the archived images, and they saved hard copies of the images accordingly. (Pl's Mot. Partial Summ. J. Ex. B, Bonini Dep. at 231.) The Harding firm viewed and copied the archived images of a public website in an attempt to defend their client against a charge of copyright infringement. The purpose of the Harding firm's infringing activity militates in favor of a finding of fair use in this case. The second factor that I must consider is the nature of the copyrighted work. 17 U.S.C. § 107(2). One of the more important
things here is the fact that the Harding firm obtained and copied information originally made publicly available. Healthcare Advocates' website was used in a marketing capacity for the company. It informed the public about the services Healthcare Advocates provided. (Pl's Mot. Partial Summ. J. Ex. A, Flynn Dep. at 30.) The website was primarily a marketing tool, and Kevin Flynn, president of the company, stated that the original purpose of the website was advertising. (Id.) The website included contact information, descriptions of the services provided, testimonials from satisfied users, answers to frequently asked questions, and cost of the service. See Healthcare Advocates' website available at http://www.healthcare advocates.com (last visited July 2, 2007). Healthcare Advocates copyright protected its website to prevent competitors from gaining an advantage by being able to pilfer its promotional and marketing tools. (Pl's Mot. Partial Summ. J. Ex. A, Flynn Dep. at 170.) The purpose of copyright protection generally is to stimulate creativity for the public good. G. Peter Albert Jr. and Laff, Whitesel & Saret, Ltd., Intellectual Property Law in Cyberspace, 207 (1999). "Because the ultimate goal of copyright law is to increase our fund of information, the fair use privilege is more extensive for works of information[.]" Marshall Leaffer, Understanding Copyright Law 436 (3d ed.1999) (citing Sony Corp. of Am., v. Univ. City Studios, Inc.,464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984)). The nature of these works was predominately informational. This factor works in the Harding firm's favor as well in this fair use determination. The third factor that must be considered is the amount and substantiality of the portion of the copyrighted work used. 17 U.S.C. § 107(3). There is no disagreement that the Harding firm viewed and copied in their entirety all of archived web pages they viewed through the Wayback Machine. The question is whether the Harding firm copied more than was necessary and justifiable under the fair use doctrine. See Marshall Leaffer, Understanding Copyright Law 438 (3d ed.1999) ("excessive copying not commensurate with the purpose of the use loses the privilege of fair use."). This is not a quantitative determination, but rather a qualitative one. See Harper. & Row Publishers, Inc., 471 U.S. at 564-65, 105 S.Ct. 2218. The fact that a party copies only a little of a work is not dispositive. In the Harper & Row case, the infringer copied a very small portion, 300 words, of an unreleased 200,000 word novel in a magazine article. The courts found that while the portion copied was small in comparison to the majority of the work, the copied portion was the heart of the work. That fact worked against a finding of fair use. Thus, even though the Harding firm copied everything, I must assess the import of their actions in so doing. It was necessary for them "to copy everything they viewed because they were using these screenshots to defend their clients against copyright and trademark infringement claims. The defense was that the material infringed was information posted on the company's public website. The Harding firm was justified in viewing and printing as many versions of the website as necessary to show that the material had been made public. More importantly, as discussed below, the material was relevant evidence in the Underlying Litigation, and the firm had a duty to preserve relevant evidence. They fulfilled that duty by printing copies. Therefore, the substantiality of the portion used does not militate against a finding of fair use.
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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