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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.
fsck me if i'm wrong, but wouldn't this be similar to suing someone for referencing an old book I wrote, just because I'd released a new one that didn't contain much of the old information?
Don't anthropomorphize computers: they hate that.
Did they set up their robots.txt file properly? If not, they may not have a case.
The simple truth is that interstellar distances will not fit into the human imagination
- Douglas Adams
Better sue everyone who has visited the website in question but never purged their temporary internet files folder.
Would that make archived newspaper editorials, TV reports, etc. illegal as well? Google beware.
Looking forward to newspapers filing similar frivolous lawsuits against libraries for maintaining old copies of the papers in their collections; copies that newspaper company might be embarassed about now.
Don't blame Durga. I voted for Centauri.
....why not just ask them to take them off?
Wouldnt this reference site be covered under some of the same protections as a library. It serves some of the very same purposes.
Hopefully this falls flat.
I wonder where the server are locations
Pablo
Lawsuits these days sound more like people whining like spoiled brats than someone really done an injustice.
They publish the thing, person X stores it, person Y uses stored info to prove they publish it. So what? If they'd written the thing in a newspaper they would sue someone for keeping the newspaper?
Huh
"Those who cast the votes decide nothing; those who count the votes decide everything." (attrib. Joseph Stalin)
I'm not saying that legally they don't have a legitimate case, but is it really necessary to persue an organisation such as the Internet Archive over something so passive as this? In my opinion, hell no it isn't.
She's built like a steak house, but she handles like a bistro....
The archive is being sued by Health Advocates, not the legal firm that had defended Health Advocates. In fact, the legal firm is named in the suit as well.
And to clarify: its not a simple "you have our stuff stored on your systems" claim. Rather, Health Advocates is claiming that the archive failed to follow the instructions in robots.txt that were intended to prevent access to historical material.
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.
..on at least two dates in July 2003, the suit states, Web logs at Healthcare Advocates indicated that someone at Harding Earley, using the Wayback Machine, made hundreds of rapid-fire requests for the old versions of the Web site. In most cases, the robot.txt blocked the request. But in 92 instances, the suit states, it appears to have failed, allowing access to the archived pages.
For the "I don't wanna rtfa because its early" crowd.
Assuming the judge has more than one brain cell then this case should take no more than 30 seconds and will be summarised in two sentences.
"You published information on a public medium. Case mismissed."
But then again this is America we're talking about.. home of the idiot lawsuit and lunatic judicial decisions so I don't hold out much hope for the triumph of reason...
Sky subscribers are morons. They pay to be advertised at !
Comment removed based on user account deletion
This is a case where a plaintiff of an action (that they probably lost) is sueing opposing council for using the internet archive looking for old documentation that is used as evidence against its claims. In effect, they're claiming that because they had a robots.txt any page that might have been on the internet archive was there illegaly, and shouldn't have been used as evidence.
In effect, they're saying "we were wrong, we tried to destroy the evidence of our wrongdoing, but because the shredder jammed and you found the evidence anyway, you're abusing our copyright".
The court hearing their argument should thoroughly smack them. Perhaps they should be brought to justice for trying to destroy evidence (or instructing a third party to do so), surely that's illegal in these post-Enron days.
Sorry, the writeup is bollocks. It says:
"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."
and also:
"Last week Healthcare Advocates sued both the Harding Earley firm and the Internet Archive".
So to believe the write up, they are being sued by BOTH parties.
However, it says, in TFA:
"... John Earley, a member of the firm being sued, said he was not surprised by the action, because Healthcare Advocates had tried to amend similar charges to its original suit against Health Advocate, but the judge denied the motion. Mr. Earley called the action baseless, adding: "It's a rather strange one, too, because Wayback is used every day in trademark law. It's a common tool."
Christ knows where the idea they they are being sued by the firm Harding Earley Follmer & Frailey came from.
Doesn't anyone else read the stories first? o_O
... if they lose this fight.
For example, 2600 Magazine's old web site containing a copy of the DeCSS source code is stored in the Archive. Could the Archive be held in violation of the DMCA for mirroring someone else's old site?
I am scientifically inaccurate.
""Day by day and almost minute by minute the past was brought up to date. In this way every prediction made by the Party could be shown by documentary evidence to have been correct; nor was any item of news, or any expression of opinion, which conflicted with the needs of the moment, ever allowed to remain on record. All history was a palimpsest, scraped clean and reinscribed exactly as often as was necessary."
The problem is that by allowing illegally obtained evidence, you are officially and legally endorsing criminal activity.
Who wins in a criminal vs criminal case? Would police officers be forced to fall on their own swords - ie commit criminal acts to gain evidence - on order of those above them? It also gives the thumbs up signal to vigilante justice too.
Oh, let's not also forget that it'd put the idea of court orders, seartch warrants, the right to be innocence until proven guilty (admittedly already fading), and a whole host of other rights in their graves.
There's just so much wrong with the idea of allowing illegal evidence, I'm surprised when anyone asks why it's wrong.
So the robots.txt was added YEARS AFTER the site had been archived. I don't think they correctly used the "no-archive-time-travel" directive.
"We've lost our case based on evidence and will now be suing the organisation that provided the evidence for doing so".
Slashdot social media options: AIM, ICQ, Yahoo, Jabber and Mobile Text. Why no MySpace?
First and foremost, the existance of a robots.txt does not constitute a contract between the client (a web surfer/browser agent) and the server (the site hosting the content proper). Repeat that over and over. There is nothing stating that the existance of robots.txt on your server must be requested by my crawler or spider.
Its preferred, but not required. Even so, I am free to ignore it if I want, and parse whatever links I see fit to grab. If you make the content public and I want to read that content, I'm going to get it, whether you have robots.txt in place or not.
Secondly, has anyone taken the time to validate the robots.txt file found on the site in question? Note too that they just changed robots.txt on July 8th of this year. Did the previous version validate? Are they trying to rewrite history again? What did the old version look like?
If there is even so much as one error, robots/crawlers are free to ignore/parse/merge/break it as they see fit. It happens all the time, and even when robots.txt is perfectly valid, many robots and crawlers ignore it anyway (msnbot and Yahoo's crawlers are two of the worst offenders here).
But back to the first point, robots.txt is a guideline, not a rule, not a contract, and certainly not something that can be enforced. Does lack of a robots.txt file constitute the legal right to publically redistribute the content? Or store it for later review and retrieval? How do you know any of your former employees from 1996 haven't stored your entire website on floppy, one page at a time? Did they adhere to robots.txt? Did ANYONE adhere to robots.txt in 1996? It seems that there was evaluation of the Robots Exclusion Standard in 1996, but was everyone using it? Not likely.
Microsoft Internet Explorer will certainly store the entire website for "reading offline" if you ask it to do so when bookmarking it. They don't parse robots.txt to exclude pages that shouldn't be stored locally.
Its too bad that people need to try to erase history to prevail in litigation. This isn't George Orwell's 1984... well, at least not yet anyway.
By nature of copyrights, everything that you create is automatically copyrighted the instant that you create an origial work. This post has already been copyrighted by me.
You don't HAVE to register the copyright with the Copyright Office in order to retain the copyright. Doing so though gains you added benifits in case there is a dispute. Published works ARE REQUIRED to be registered. However, just putting the website up does not count as publishing. In order to be considered published works, the work must be sold or otherwise have a transfer of ownership, or through rental, lease, or lending. They Copyright Office has even said "The reports also state that it is clear that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work." (Source)
Oh man, that sucks! I guess I better turn off all caching in my browser, lest I get sued for copyright infringement, because it's storing and rebroadcasting copyrighted materials that you may no longer want me to see at later date.
However, if you RTFA'd, you'd know that lots of IP law firms use the Wayback Machine on a daily basis, and in fact, the company suing the Internet Archive is not suing them for republishing copyrighted information. Rather, the case is that they recently placed a robots.txt file on their site that disallows viewing historical versions of the website, and the Archive is being sued because the Wayback Machine apparently ignored the robots.txt file (which, I might note is a voluntary standard, and by no means implies a contract between the two parties), which the plaintiff claims violates the DMCA. This has nothing to do with copyright violation.
It has everything to do with robots.txt. Read.
--- What
I've read about 500 analogies on what electronic information "is like".
Every analogy is bad. We cannot equate electronic information with physical information of ages past. Every analogy just plain sucks.
The reason the information age has taken off is because of the ease of transmitting, storing and copying of electronic data. These methods weren't available fifty years ago, and weren't wide spread until about twenty years ago. Trying to stuff these concepts into one-hundred plus year old ways of thinking is just useless.
This does not mean we can't use older solutions to problems to guide us in the future. But, we need to stop shackling ourselves to old ways of thinking. The fundamental way we transmit thoughts and ideas have changed, our fundamental way of thinking about information needs to change as well.
Does this mean "all information is free"? No. But trying to treat electronic information like a book is useless. Web sites are put out to be publicly consumed. It is contradictory to say that someone cannot cache it for non-profit purposes. Trying to reuse the "creative" parts of the web site for commercial purposes should be prohibited.
Bottom line: Stop with the analogies. Start thinking fresh.
See my journal for slashdot ID's by year. Mine created in 2005. http://slashdot.org/journal/289875/slashdot-ids-by-year
And if you printed out the site, would they want to sue you for "reproducing" that site? Along the same lines, would someone want to sue you because you kept a book you bought 10 years ago and the author had written a new version? This all smacks of this "on demand" nonsense and self-destructing media and even shades of Orwell's 1984 where the Ministry of Truth modifies ancient history when it suits their purposes. This is all part of an attempt of corporations with the complicity of the legal establishment to place absolute control of all media in the hands of said corporations. Which all leads to the fact that it's time for the Congress to enact a Corporation Control Act that would finally put a leash on these rabid idiots.
"Is this Winkhorst a nova criminal?" "No just a technical sergeant wanted for interrogation."
Oddly, the Internet Archive honours robots.txt, so if you don't want people to surf your archive, you can just post their robots.txt file and it will block everything, even into the past.
I would say that caching and archiving are so well understood to be part of the Internet that posting a web page and not expecting it to be archived or spidered is absurd. In other words, by posting their site to the web without a robots.txt, they knowingly published it in a medium which contains facilities for archiving and later redistribution.
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.
.
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
From TFA:
So it appears that the basis of the lawsuit is that the robots.txt was NOT honored. The plaintiff claims that the robots.txt is a "contract" and that the wayback machine violated the contract by still allowing archived pages to be viewed in a limited number of attempts, for reasons unknown.
However, the TFA also does mention that honoring the robots.txt is strictly voluntary and does not constitute a contract.
-CausticPuppy "Of all the people I know, you're certainly one of them." -Somebody I don't know
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
From the article:
Frivolous Lawsuit? Hardly.
Excellent Spin-doctoring on McDonald's Part? Absolutely.
Yeah, right.
The Wayback Machine on the other hand stores copies of pages, not copies of their adresses.
Not exactly the kind of people you want to be defending. The fact that copyright law can be used this way suggests it is broken. The fact that it was created before our modern information economy was formed also suggests it is broken and in need of revision.
Credibility is not something you can easily steal, and the people who "get there first" tend to get the lion's share of credibility, even when competing against companies much larger than themselves.So your cheap shot about how people on Slashdot have nothing to lose is just that, a cheap shot with no substance or truth. We're not saying that copyright laws need to be entirely abolished, but they do need to be updated to reflect our modern society and information infrastructure. The fact that we're compelled to lay unenforceable law after unenforceable law down on top of copyright law in a vain attempt to keep it afloat in its current state should be evidence enough that things need to change.
Excuse me? What? A public website is by its very nature meant to be redistributed. It is replicated on millions of machines per day for many different purposes. If you do not agree to at least some redistribution for your website, then take it offline because it doesn't work without redistribution.Sue the caching proxy servers! Sue people who use internet cache! Sue Proximitron users! Sue link-of-the-day sites because they helped people replicate the data. Wait, why not just sue everyone online, because they were party to the crime by using the same routers!
Nice, avoiding his point entirely. Part of copyright law is the intent with which you distribute it. This helps prevent entrapment scenarios. If you place a public site on the internet, your intent is to have it treated like a public site. This means it will be crawled by search engines, cached by proxies, linked to by interested users, downloaded for personal offline browsing, pre-cached by Earthlink and AOL services, and archived by the wayback machine.This is the cost of doing business on the internet. This is how it works, and how it's going to continue to work. If you are not willing to express this intent with your website, take it down now.
Bear in mind that the article is about a large insurance corporation trying to deny benefits to a group of people, using copyright law as a club to beat evidence into inadmissibility. We're not talking about chinese knockoffs ruining a poor independent artist. We're talking about Yet Another Way Out for corporate America's scumbags.If copyright law allows this, then we need to tear it down and fix it, because I'm not willing to pay such a stiff price for a basic kind of protection that I probably can't afford to fight in court anyways.
Slashdot. It's Not For Common Sense
If that's true, we had all better be careful not to visit *too* many pages on a given website during a given day. Either that or make sure that our web browser is set to immediately flush all downloaded content once it has been rendered.
The argument being made is that copyright is being violated, but the way the archive works might well be considered fair use, since the *only* reason it exists is for archival purposes. If having a copy of website content is illegal, in and of itself, then everyone who uses a web browser (unless they're running knoppix or something that doesn't store anything to the HD) is just as guilty as the Internet Archive.
I hereby rescind your permission to copy any of my posts, which means that if you're reading this, you're in violation of copyright law.
Okay, I now release my copyrighted work officially into the public domain. You're safe now.
"Murphy was an optimist" - O'Toole's commentary on Murphy's Law
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, while they do not give up any copyright, there are a number of explicitly stated, legal uses of copyrighted materials and there is a great deal of public benefit to enumerating a few more of them. Can you honestly argue it is not in the public's best interest that a historical archive of the internet exists, for educational reasons if no other? This case should be a poster child for just such legislation. A company published something, lied about it, and are now suing the people who made a copy and proved their guilt. Are you saying it is in the best interests of society that copyrights be used as tool to promote lies and censorship?
Copyright is supposed to be about one thing and one thing only, promoting science and arts. That is the only constitutional provision for its existence. If someone is copying legally obtained works into an archive for educational, historical, or non-profit uses then they are almost invariably helping to promote science and arts, and anyone trying to stop them is up to no good.
As to the letter of the law (which is probably unconstitutional although it is impossible to prove that) you're right. The internet archive is screwed in the U.S. and many other countries. They tried to do what copyright law originally required of copyright holders and the library of congress. If a work is to copyrighted then ethically it needs to be available. That is the whole point of copyright. According to the letter of the law it is probably illegal for me to print out the receipt some e-businesses display when I buy something online. The law needs to be fixed.
In fact, limiting the rights of others to distribute your works in order to encourage you to make them available is exactly what copyright is for, and this sort of case is a textbook example of why the principle matters.
What? How does this limiting of the rights of others encourage them to distribute the material? They, like the majority of copyright holders these days, don't want the work to be available at all. It does not encourage them to publish it, it just gives them a way to prevent works from being distributed.
The archive is in trouble not because the violated the intention of copyright. They, in fact, are trying to uphold the very principals upon which it is founded. Unfortunately, the laws have been changed by the corrupt and greedy to create a situation where copyright does exactly the opposite of its original purpose. This is a perfect example of copyright laws that have been rewritten being used to hold back progress and remove works from public availability. It is unethical and sickening and your implication that a businesses financial considerations should trump both the rights of our descendants to have access to our works and that they trump the the ability to find and present the truth in the courts... well it makes me want to vomit. Go to hell.
Shouldn't that be "...the f***ing TFA article also does mention..."
Can you sue a witness because he remembered the facts against you during a trial the same way the Wayback Machine is being sued because it "remembers" old facts and saying and has been used in courts?....
You are more than the sum of what you consume. Desire is not an occupation.
I know you're all going to find this shocking, but it looks like the
1. Healthcare Associates of Philly sues Health Advocate. The law firm representing the plaintiff is McCarter & English. The defendant's is Harding et al.
2. Healthcare Assoc. modifies robots.txt to tell IA not to allow access to older versions of their site. 3. Harding et al. manages to get the IA to give them a peek anyway*.
4. Healthcare Assoc. sees "rapid fire" requests from Harding in their logs, and a few times the IA slipped up and granted access anyway.
5. Healthcare Assoc. sues Harding et al. and the IA.
*My guess is that the IA checks the current robots.txt everytime an archived page is accessed. If the server doesn't respond quickly enough, the assume it's OK to give access to the archived files. Harding et al. might have realized this and requested the pages over and over in rapid succession to slow down Healthcare Assoc.'s servers enough to trick IA into thinking they're not responding. This is all just my speculation, so take it with a grain of salt.
(Sorry for the crappiness of the diagram. Apparently Slashdot is more concerned with preventing 13-year-olds from posting ASCII art versions of gotse man that will be modded down to -1 in 2 seconds than it is with allowing people to make diagrams to illustrate something. And why the eff doesn't the "ecode" tag work properly?)
Those are just the first few examples that come to mind, but the significance is clear: just because some information was available somewhere at some time, that doesn't automatically means there's a benefit to society to preserving that information in an obvious place for all time.
The answer to problems with information like drafts and trade secrets being public knowledge after being published is simple, don't publish them. If you don't want people to read drafts of unfinished works, don't publish them online. You do realize copyright law, even today in theory, insures that all copyrighted works are to be preserved for the public and given over to the public for all time once it expires right? And how many better authors would we have today if we did have Shakespeare's drafts to look at to help understand his writing process?
I'm going to skip your constitutional arguments, because copyright is an international convention, and most of the world isn't subject to your constitution. Can we agree the more neutral definition that copyright exists to promote the creation and distribution of works for the benefit of society?
Most copyright law in the world is pretty similar to that in the U.S., but fine lets ignore the U.S. constitution. Lets talk about natural versus artificial rights. Freedom of speech is in my opinion a natural right. Copyright is, in my opinion an artificial right, granted as part of an agreement between authors and those who would benefit from said authorship. Authors are rewarded for giving works to the public with the rights to make money. What advantage does a copyrighted work that is not available to the public give to the people who are giving up their natural right to copy it freely?
Your position is illogical. We're talking about material that has already been made available. If it's a work of value, then probably it was removed because the copyright holder was going to distribute it via some other means, or was working on a newer, better version and didn't want the out-of-date material getting in the way. If it's not a work of value, then there is little public interest to be served in preserving it, particularly if doing so causes any harmful effects to the parties involved.
And here is where your argument falls apart completely. You're making a whole slew of assumptions here, most of which are not true. First you're putting responsibility for deciding what is and is not of value to the public into the ahnds of the copyright owner (note in most cases this is NOT the author anymore). Next you're assuming that not only will the copyright owners know what works are valuable to the public, but they will act in the best interests of the public rather than in their own best interests.
You do realize that the vast majority of copyrighted works including art, literature, film, and music are completely unavailable to the average person right? About .05% of all copyrighted books are still in print and maybe 3% are still available either new or used. The same holds true for music. This is mostly because so many works are copyrighted, but no one knows who holds that copyright, or because the large companies that own millions of copyrights don't want older works to compete with current offerings. Is it in the best interests of the public as a whole to have no access to the majority of our artistic, music, theatrical, and literary heritage? How many great works are in those collections, that will never be seen ever again because the last copy is lost and it was illegal for anyone to make more except some company who did not see the profit in it?
If you remove copyright...
I never said anything about removing copyright, only reforming it. For example it used to be that every copyrighted work in the U.S. had to have two good copies sent to the library of congress to be archived for reference and to preserve the work for future generations. Sound familiar? If that law was still in effect
| 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