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.

Comments

What? They have evidence? Sue them!

[div_2n]

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.

Re:obvious man question

[Chuck Chunder]

Putting up an unprotected web site is akin to putting up a billboard. If I take a picture of the billboard and publish it in a textbook that kids read for the next 20 years, should I be expected to be sued by the billboard company?

Apparantly, yes.

Re:obvious man question

[hacker]

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.

Re:We have this one every time...

[ciscoguy01]

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.

Re:obvious man question

[Zeinfeld]

To sum it up, the plaintifs are claiming that the Wayback Machine didn't obey the robots.txt at their site and are calling it breach of contract.

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.

Who has the right right to store store windows?

[NetSettler]

almost everything (there have been a few mistakes) posted on the Web that is publicly accessible was put there to be seen!

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.

this suit is like complaining about a "for sale" sign in a store window being photographed, saved for years, and later viewed

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 internet archive were allowed to make, but not immediately publish, a complete record
• they could immediately sell 404 protection and wayback search tools and other such things if both they and the affected site wanted (since that's voluntary on the part of the copyright holder)
• they had to hold off on full view for, say 25 or 50 years, or perhaps, the number of years copyright runs

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.

Re:obvious man question

[mrchaotica]

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...