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The Internet Archive Sued Over Stored Pages
Kailash Nadh writes "The Internet archive, which has been storing snapshots of millions of webpages since 1996 has been sued by the firm Harding Earley Follmer & Frailey, Philadelphia. The firm was defending Health Advocate, a company in suburban Philadelphia that helps patients resolve health care and insurance disputes, against a trademark action brought by a similarly named competitor. In preparing the case, representatives of Earley Follmer used the Wayback Machine to turn up old Web pages - some dating to 1999 - originally posted by the plaintiff, Healthcare Advocates of Philadelphia. Last week Healthcare Advocates sued both the Harding Earley firm and the Internet Archive, saying the access to its old Web pages, stored in the Internet Archive's database, was unauthorized and illegal." CT:update note that the submittor got it backwards: Healthcare Advocates is the sueing Wayback and Harding Earley Follmer & Frailey, not the other way around.
....why not just ask them to take them off?
They got caught with their pants down and now are suing because someone kept the evidence. Boy do I hope this lawsuit meets a swift and decisive end in favor of the Internet Archives.
To be candid, I'm surprised it took this long for someone to sue them.
Again, not comparable (but this didn't stop you from getting modded up of course). The libraries had permission to buy the papers and allow access to them in the first place. Internet Archive had no such agreement with this company. IA took the absence of them saying no as an implicit agreement, which for pretty much anything else, isn't legal (it hasn't been tested yet with websites and caches). They in fact, did say no. But a bug caused this message not to be delivered/it was ignored some of the time.
It's going to get worse before it gets better. Our culture is being forced to confront issues of privacy and information ownership that have previously laid under the radar only because violating these issues was inconvenient or expensive.
But the internet is changing that, and now an errant picture or snippet of text can be reproduced and distributed widely for practically zero dollars.
I think eventually we'll settle on some kind of bubble of privacy concept, in which anything inside is legally protected, but anything you distribute outside that bubble is fair game for anyone, forever.
This is generally the case in the real world. If someone wears clothes, they effectively have created a privacy bubble, only allowing limited information about themselves to be distributed (via reflected light) to be seen by others. But what information they do allow to escape is fair game for distribution in photographs.
In a sci- fi series (Neverness et al), Zindell argues that in the future, even identity will be as carefully concealed in public as one's privates. As information technology saturates our culture, even revealing our identity in public is going to be increasingly dangerous.
Of course DRM advocates will try to attach little bubbles of limited privacy to specific bits of content released into the wild. Eventually, I hope, common sense will prevail and such ridiculous notions will be abandoned.
For the "It's too early to think crowd"...
How did Healthcare Advocates determin that Haridng Early was making hundreds of requests for files on the Wayback Machine? The logs would have been kept on the Wayback Machine's servers, not on anything Healthcare Advocates would have access to easily. Harding Earley would be accessing the files via the Wayback Machine's copies, not the copies that are kept on Healthcare Advocates website
Boffoonery - downloadable Comedy Benefit for Bletchley Park
I can tell you exactly where the problem lies (and I know this because I have customers who behave this way):
When they write documents, they write them in HTML format. They send their email, they send itin HTML format. When I asked for them to prepare content for their website, they gave me a Microsoft Word document in HTML format, and said "You don't have to use the same fonts I used in this document, but please keep the layout the same on my website."
These users equate "a document" to "a website", and they think that once they stop using or sending that document out, that their "website" should be removed as well. They think websites are "sent" to people, not requested "by" people, and that when you close your browser, your "document" is gone.
That simply is not the case, and people need to be re-educated to understand these technologies and how they work. The Internet was MEANT to be self-healing, in case one node or another went down, information and information pathways would still be functioning.
Actuanlly no..
The courts have held that things not plainly visible ( plainly being not obvios to a human at a reasonale distance or public place ) are illegal to disiminate. Like when you turn on night vision during the day. It captures IR and translates it to B&W, the problem is that our body reflects more of it than our clothes do giving all clothes a semi-transparent look. The courts have held that even though they were recourding in public they violated the privacy of the people taped. This doesn;t mean that all IR captures in public are illegal, but when it's specifically used to reveal information about a person that is not plainly visible it might be a crime.
The courts have also held that augmention of senses cannot be used as an excuse to break the 4th ammendmant. Cops can only use items that are plainy visible to initate a search on a private residence. This president was set after they used heat signatures to get warrants for pot growers ( because of the grow lamps used ). Remeber that with technology today you can basicly see movement and hear speech through walls.
Seriously, we have this discussion every time Google or the Wayback Machine or whatever comes up. Putting material on the Internet does not give up your copyright on it, place it in the public domain, grant others the right to reproduce it any way they see fit, or otherwise work differently to copyright laws as they apply to all other media. There are necessarily certain implied rights, but arguing that actually ripping someone else's material and then making it publicly available after they've withdrawn it from their own site is a pretty big stretch to anyone without a vested interest.
Actually there is a simple principle here.
The supreme court has ruled that directories cannot be copyrighted if the information they contain is purely factual in FEIST v. RURAL TELEPHONE, 1991
An example is the telephone book, those are all facts and that was what the case was about.
The wayback machine could be called a directory of old web pages, cached as they existed at the time. Facts.
Thus protected from copyright claims.
Well, there's their defense. It would be kind of fun to argue!
In any case it looks like the wayback machine needs a couple hundred mirrors. Heh.
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It seems rather more likely that the plaintifs fucked up their robots.txt file entries and that is why they were spidered.
At the risk of receiving yet another deposition I was part of the conversations that led to robots.txt. It was never intended to be an access control mechanism or an effective content control mechanism within the meaning of the DMCA. The objective was simply to allow sites with automatically generated content to tell the robots that parts of their site are not suitable for spidering.
So now it looks like we are going to have revisit the business model for the way back machine and work out how to float a littigation fund.
Actually one way that it could be done is to sign and timestamp material on receipt and offer the signatures as a premium service.
Looking for an Information Security student project suggestion?
Try http://dotcrimeManifesto.com/
Yes, but the difference is that under copyright law, I can require that you not make copies of my site just so that you continue to come to my site to get updated versions of things.
I do this routinely with my technical papers exactly because I know they will be updated. They're usually available for people to view and read and link to, but I ask people not to make copies elsewhere and technically that "request" is enforceable under copyright law.
Now it's true that fair use allows some things to be copied for certain reasons. And, curiously, I think the need to copy for a lawsuit might stand up. But copying the entire of everything everywhere in anticipation of something being needed for a lawsuit sounds to me to be a questionable thing. To stretch the analogy one further: making a complete repository of photos of all store windows, almost as a workaround for the fact that those store windows were not directly accessible for use. That doesn't sound like fair use to me. One of the fair use criteria is about the totality of the work, and while it's undefined how that comes into play in each instance, it's clear that the amount of bulk matters here.
Personally, I was initially uncomfortable with the Internet Archive, and I continue to be of mixed feelings about it. I think it serves a huge historical interest. However, in the nearterm it has some ill effects that run counter to the copying/distribution/presentation laws of copyright and may need some correction.
I might think it reasonable if
The disturbing part is that legal term of copyright seems to continue to lengthen with time. I'm a big fan of copyright as a form of personal control for authors to get income from their works, but copyright must lapse after some part and it is already well exceeding what I think is reasonable in that regard, with the trend looking to extend indefinitely as rich copyright holders influence congress to extend every time, say, Mickey Mouse comes into jeopardy.
Kent M Pitman
Philosopher, Technologist, Writer
Or just move the hosting to Sealand and ignore lawsuits. Although IANAL, I think this is the more reasonable course of action, since you have to be insane to deal with the insanity of today's copyright law.
Well, either that or try to get absorbed by the Library of Congress or something...
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
| That's akin to advocating free speech, even if it means shouting "Fire" in a crowded theatre
The correct quote is "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." and it has absolutely nothing to do with the issues at play in this case. The statement is a limitation where it endangers public health and or safety, and I dont think anyone would apply those standards to this case. Similarly, Defamation has no relation to this case, and Breach of Contract in the form of robots.txt is already a bone of contention in the case.
I'm not having this discussion about free speech. I'm having this discussion about the scope of current copyright arguments. I'm not arguing that this suit is trying to muzzle the IA in violation of the first ammendment. That would be a flawed argument anyway - the IA is an organization, not an individual, and thus not subject to constitutional protection in most cases (including this one). I'm arguing that the value proposition of copyright does not extend to preventing organizations like the IA from documenting the state and history of any publicly accessible website. It is a documentarian, and educational role, and as such, is every bit as appropriate as the library system.
The Internet Archive is, in essence, cataloging the evolution of one of the most significant cultural phenomenons of the last century. That IS of tremendous historical significance - most especially because 80% of the content that is there now will be lost forever within the next year if they DONT do it.
The internet is evolving at a breakneck pace. As new business models, new buisnesses, new display models, new UI elements and new languages crop up, older sites are redesigned, replaced or relegated to non-existence by darwinian market forces. What is there now bears little resemblance to what was there a year ago, and likely little resemblance to what will be there a year from now. This evolution is of tremendous social, scientific and cultural significance.
Do I believe that documenting this growth and evolution trumps the overextended copyright argument presented by the plaintiff in this case? Yes, I do. The plaintiff had no reasonable expectation of privacy where the public website was concerned. The information was placed in what amounts to a public space, with no access controls and no barriers to public navigation. To assert then, that the IA was acting inapproriately to document the state of the public portion of that site is patently absurd.
Now, to your other points...
We aren't discussing Joe User's website, we are discussing a website developed and deployed by a corporation at some expense with the express purpose of giving them a 'web presence'. Many jurisdictions will now permit the argument of publication where an agency has spent time and money to make information available to an audience. The expense and resources expended to make it available to the public presuppose an intent and desire that it be seen and consumed by the public. Further, the case in question references the DMCA, and specifically, a means to bypass security measures to prevent copying. That clause of the DMCA (and arguably the whole the whole law) applies _specifically_ to published media.
Regardless, flyers distributed in a parking lot or on a public bulletin board also carry all of the assumptions needed to carry the rest of my argument. The 'provider' of such information has no control over the future use or reference to those fliers in an educational, historical or editorial context.
Again, free speech is only a peripheral issue here. Fair use doctrine is as much, or more a limitation of copyright as it is a defense of the first ammendent. While first ammendment protections have been used to DEFEND fair use in the past, it does not necessarily follow that all questions relating to fair use are also first ammendment challenges. At question here is the IA's right to