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HEALTHCARE ADVOCATES v. HARDING, EARLEY, FOLLMER
497 F.Supp.2d 627 (2007)
HEALTHCARE ADVOCATES, INC., Plaintiff,
v.
HARDING, EARLEY, FOLLMER & FRAILEY, et. al., Defendants.
Civil Action No. 05-3524.
United States District Court, E.D. Pennsylvania.
July 20, 2007.
Peter J. Boyer, McCarter & English, LLP, Philadelphia, PA, Scott S. Christie, McCarter & English, Newark, NJ, for Plaintiff.
Jeffrey P. Lewis, McKissock & Hoffman, PC., West Chester, PA, for Defendants.
MEMORANDUMROBERT F. KELLY, Senior District Judge. Presently before this Court is the Motion for Summary Judgment filed by Defendant Harding, Earley, Follmer & Frailey, John F.A. Earley III, Charles L.
Riddle, Frank J. Bonini Jr., and Kimber Titus (collectively the "Harding firm"). Also before this Court is the Motion for Partial Summary Judgment filed by Plaintiff Healthcare Advocates, Inc. For the following reasons, Defendants' Motion for Summary Judgment is granted, and Plaintiffs Motion for Partial Summary Judgment is denied. I. BACKGROUND Healthcare Advocates is a patient advocacy organization that assists its members in their dealings with health care providers. The Harding firm is a boutique law firm located in suburban Philadelphia that focuses its practice on intellectual property law. Healthcare Advocates was the plaintiff in a lawsuit filed in June of 2003 by its founder and president Kevin Flynn in which he alleged that a competitor of the company infringed trademarks and misappropriated trade secrets belonging to Healthcare Advocates. The Harding firm represented the defendants in that lawsuit, an action which was dismissed by this Court on summary judgment. Flynn v. Health Advocate, Inc., No. 03-3764, 2005 WL 288989 (E.D.Pa. Feb. 8, 2005) (hereinafter the "Underlying Litigation"). The present civil action arises out of events that occurred in the pre-discovery phase of the Underlying Litigation. The facts of this case are relatively simple. Healthcare Advocates commenced the Underlying Litigation by filing a complaint on June 23, 2003. After receiving the complaint, the Harding firm began investigating the facts behind the allegations contained therein. The investigation led the Harding firm to search on the Internet for information about Healthcare Advocates. On July 9, 2003, and July 14, 2003, employees of the Harding firm accessed a website operated by the Internet Archive (www. archive.org), and viewed archived screenshots1 of Healthcare Advocates' website (www.healthcareadvocates.com) via a tool contained on Internet Archive's website called the Wayback Machine. The Wayback Machine allowed the Harding firm to see what Healthcare Advocates' public website looked like prior to the date the complaint was filed in the Underlying Litigation. Viewing the content that Healthcare Advocates had included on its public website in the past was very useful to the Harding firm in assessing the merits of the trademark infringement and trade secret misappropriation claims brought against their clients. The Harding firm also printed copies of each archived screenshot of Healthcare Advocates' public website that they viewed via the Wayback Machine. The images were used during the course of the Underlying Litigation. The Harding firm did not actively save any of the screenshots they viewed onto their computer hard drives.
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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