|
View Case
|
|
Cited Cases
|
|
Citing Cases
|
|
Comment (0)
|
 |
|
|
|
|
|
|
|
HEALTHCARE ADVOCATES v. HARDING, EARLEY, FOLLMER
497 F.Supp.2d 627 (2007)
United States District Court, E.D. Pennsylvania.
July 20, 2007.
Healthcare Advocates reads this answer to state that the Harding firm anticipated that they would be sued for violating a statute enacted to combat "hacking" when they accessed a public website via a web browser. Healthcare Advocates' inference that the Harding firm immediately knew that its actions in using a public website to obtain archived screenshots of another public website would open them up to liability under the DMCA is unreasonable. This answer shows that the Harding firm knew these archived images were relevant to the Underlying Litigation, and that they had a duty to preserve any copies they printed. What the Harding firm should have anticipated was that the images they copied would be relevant, which they did and saved accordingly. (See generally Pl's Mot. Partial Summ. J. Ex. B, Bonini Dep. at 250-51.) The Harding firm had no reason to anticipate that using a public website to view images of another public website would subject them to a civil lawsuit containing allegations of hacking. Healthcare Advocates further argues that since the Harding firm clearly knew that the cache files were relevant, they should have immediately removed the computers from further use for fear that these temporary files might be lost. Healthcare Advocates believes that the failure to take this measure simply "shocks the conscience." (Pl's Br. Mot. Partial Summ. J. at 23.) As stated above, this Court has not seen any evidence showing that the Harding firm knew or should have known that a lawsuit under the DMCA was likely, or that temporary cache files would be sought. Thus, the failure to immediately remove computers that the firm used everyday,
when they had no reason to believe that their actions would subject them to a lawsuit for "hacking," is not an action that shocks the conscience. Alternatively, Healthcare Advocates states that even it the Harding firm was not immediately aware of their duty, they were informed of the need to preserve these temporary files in the letter sent by Healthcare Advocates's counsel in the Underlying Litigation on October 24, 2003. (Pl's Mot. Partial Summ. J. Ex. B, letter from Halberstadt.) Mr. Halberstadt's letter, accompanied by a subpoena, informed the Harding firm that Healthcare Advocates sought production of their computers and the copies of the archived screenshots that were made. Mr. Halberstadt stated that he believed the firm's actions in obtaining the images might have violated Pennsylvania's laws. He requested that nothing be deleted or altered on the Harding firm's computers, and all copies of the requested documents be preserved. (Id.) Mr. Halberstadt's letter said nothing about preserving the temporary cache files on these computers. The Harding firm read this request as asking them to preserve the copies of the screenshots they viewed through the Wayback Machine, which they preserved. (Pl's Mot. Partial Summ. J. Ex. C, Earley Dep. at 205, 217.) The Harding firm did not think that there was anything to preserve on their computers, as they had not saved the screenshots to their hard drives. (Pl's Mot. Partial Summ. J. Ex. B, Bonini Dep. at 245.) Ultimately, the cache files were deleted from the Harding firm's computers. However, no evidence has been presented showing that the Harding firm was responsible for erasing them. The files were deleted automatically. Plaintiffs expert, Gideon Lenkey, stated at his deposition that cache files are handled automatically by the computer. (Pl's Mot. Partial Summ. J. Ex. G, Lenkey Dep. at 106.) The cache files may have been emptied dozens of times before the request for production was made, which was well over three months after the Harding firm accessed the Wayback Machine. (See Pl's Mot. Summ. J. Ex. F, Edward Felton's Expert Report at 5 (noting that some cache files are discarded after only twenty-four hours).) The most important fact regarding the lost evidence is that the Harding firm did not affirmatively destroy the evidence. Cf. Zubulake, 220 F.R.D. at 220-21 (company continued to destroy backup tapes even after these tapes were specifically requested by plaintiff). Quite the contrary, the Harding firm actually provided Healthcare Advocates with forensic images of their computer's hard drives. (Pl's Mot. Partial Summ. J. Ex. D, Riddle Dep. at 223.) Very little fault can be attributed to the Harding firm for the loss of these temporary cache files. Regarding the second consideration, Healthcare Advocates has not suffered significant prejudice from not being able to look at these temporary files. Healthcare Advocates claims that its investigation was stunted by the absence of these temporary cache files. It bases this assertion on its expert Gideon Lenkey who noted in his deposition that, "You cannot have enough data in analysis." (Pl's Mot. Partial Summ. J. Ex. G, Lenkey Dep. at 55.) However, Mr. Lenkey stated in the same paragraph that even without a perfect evidentiary situation he was able to piece together what occurred from the data available. He stated that, "we got there in the end, it just took time." (Id.) It appears that Healthcare Advocates suffered very little prejudice due to the lost evidence. The third consideration addresses the ability of lesser sanctions to remedy the situation, I do not think that any sanction is necessary here. Healthcare Advocates
was able to obtain the information that it needed through the forensic images of the Harding firm's computer hard drives. (Id.) The Harding firm did not purposefully destroy evidence. To impose a sanction on the Harding firm for not preserving temporary files that were not requested, and might have been lost the second another website was visited, does not seem to be a proper situation for an adverse spoliation inference. Healthcare Advocates's request for an adverse inference in regard to the cache files is denied. Since Healthcare Advocates has presented no evidence on the issue of whether the Harding firm infringed its right of reproduction in regard to involuntarily saved archived images in cache files, the Harding firm is granted summary judgement on this claim. Healthcare Advocates' final copyright claim alleges that the Harding firm distributed the copies it made of the archived images to co-counsel in the Underlying Litigation. No evidence has been presented showing that any distribution occurred. The attorneys who worked on the case all stated in their depositions that they did not provide copies of the archived images to co-counsel in the Underlying Litigation. (Def's Mot. Summ J. Ex. G, Earley Dep. at 202; Ex. H, Bonini Dep. at 219; Ex. I, Riddle Dep. at 201.) Copies of the screenshots were presented to this Court in camera, but Plaintiff did not include this act in its allegations.6 Healthcare Advocates has not come forth with any evidence showing that the Harding firm provided copies to co-counsel in the Underlying Litigation. The Harding firm is therefore granted summary judgment on this infringement claim.
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.
|
|
|
|
|