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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.
Finally, I must consider the effect of the Harding firm's use upon the potential market for or value of the copyrighted work.
17 U.S.C. § 107(4). As Kevin Flynn stated, these copyrighted webpages were used as advertising and marketing tools by Healthcare Advocates. They have value in the sense that they may be effective tools that help generate new customers and maintain existing ones. This value was not affected by the Harding firm's use. The screenshots were used only in a lawsuit. The Harding firm is not a competitor of Healthcare Advocates, and the firm has no use for the marketing and advertising strategies employed by players in the patient advocacy business. The Harding firm did not seek to gain a competitive advantage. Most importantly, the images viewed and copied were archived versions of Healthcare Advocates' website which the company no longer utilizes, suggesting their worth is negligible. Similarly, these archived web pages were once available for the world to view on Healthcare Advocates website. Copies of the images may exist all over the word. The impact of the Harding firm's viewing and copying on the value of this copyrighted material is negligible. Analysis of this forth element militates in favor of a finding of fair use. The analysis of all four factors shows that a finding of fair use by the Harding firm is warranted. Thus, this Court holds that the Harding firm's infringing use is excusable under the doctrine of fair use. Healthcare Advocates also claims that the Harding firm infringed its right of reproduction when they impermissibly saved copies of the archived screenshots onto their computer hard drives. However, Plaintiff has presented no evidence showing that the Harding firm purposely saved these images. Instead, Healthcare Advocates argues that the images were involuntarily saved in temporary files on the Harding firm's computers. Thus, the firm's duty to preserve extended to these temporary files. Since the files are lost, Plaintiff alleges that the Harding firm failed to fulfill their duty to preserve. Healthcare Advocates believes that if these temporary cache files had been preserved, they would have been able to determine if the Harding firm used the archived images for any purpose other than what has been alleged or admitted. Healthcare Advocates believes it is prejudiced without this evidence, and thinks the loss of these temporary files entitles it to a spoliation inference at trial. A party to litigation has an obligation to preserve relevant evidence. "While a litigant is under no duty to keep or retain every document in its possession . . . it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request." Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y.2003). A spoliation inference is an "evidentiary rationale [that] is nothing more than the common sense observation that a party who has notice that [evidence] is relevant to litigation and who proceeds to destroy [evidence] is more likely to have been threatened by [that evidence] than is a party in the same position who does not destroy the [evidence]." Schmid v. Milwaukee Elec. Tool Corp.,13 F.3d 76, 78 (3d Cir.1994). In the Schmid case, the Third Circuit set forth its balancing test for evaluating whether sanctions are appropriate when evidence is lost. The considerations are: (1) the degree of fault of the party who altered or destroyed the evidence, (2) the degree of prejudice suffered by the opposing party, and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and where the offending party is seriously at
fault, will serve to deter such conduct by others in the future. Id. at 79. The first question that must be addressed is what degree of fault must be attributed to the Harding firm for this failure to preserve temporary files. A cache file is a temporary storage area where frequently accessed data can be stored for rapid access. When a computer accesses a web page, it will sometimes store a copy of the web page in its cache in case the page is needed again. (Pl's Mot. Summ. J. Ex. F, Expert Report of Edward Felton at 5.) Some cache files are discarded after only twenty-four hours. (Id. at 6.) When the Harding firm viewed archived screenshots of Healthcare Advocates' website through the Wayback Machine, copies of the screenshots may have been automatically stored in the cache files of the Harding firm's computers. The facts show that the Harding firm made no effort to preserve these temporary files immediately after they used their web browsers. Healthcare Advocates argues that this fact alone warrants imposition of a spoliation inference. It claims that the Harding firm knew immediately on July 9, 2003, and July 14, 2003, that they had a duty to preserve the cache files on their computers. In support of its assertion, Healthcare Advocates has offered the answer that the Harding firm provided in their response to an interrogatory. The Harding firm answered question 15 of the Plaintiffs First Set of Interrogatories by stating that the firm "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 immediately upon first observation of the downloaded documents from the www.archive. org website."5 (Pl's Mot. Partial Summ. J. Ex. C.)
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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