Are You Serious, Counselor?

by Lee Gesmer on November 29, 2007

One of the many oddities of the legal profession is that judges have to take truly bizarre allegations seriously, and use detailed legal logic to dismiss them. This is like watching Aristotle being forced to debate John Cleese during a Monty Python revival festival. You see this most often in pro se lawsuits brought by prison inmates who are challenging their convictions or treatment during incarceration. You see it a lot less often in the rarified world of intellectual property litigation. However, a case decided earlier this year is a good example of this in just that context.

Harding Earley (the Harding firm) is a law firm ouside Philadelphia. It defended a client in a case alleging trade secret misapropriation and trademark infringment, brought by Healthcare Advocates, Inc. However, by doing so the Harding firm itself attracted the wrath of Healthcare Advocates, and was sued by Healthcare for copyright infringment and various related claims. This suit garnered some attention at the time it was filed, and I wrote about it here, in a blog entry titled The Wayback Machine and the DMCA. Rather than repeat the basic facts here, I refer you to the original article.

The case has now been decided by the Federal District Court for the Eastern District of Pennsylvania (Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey). The issues presented, and their resolution by the court, were as follows:

First, did the Harding firm infringe the copyrights of Healthcare, by printing screen shots of Healthcare’s website during its investigation of the case? Not surprisingly, the Court held that the law firm fell within the copyright “fair use” exception by printing these documents and using them to defend its client. the Court: “It would be an absurd result if an attorney defending a client against charges of trademark and copyright infringment was not allowed to view and copy publicly available material, especially material that was alleged to have infringed.”

Second, did the Harding firm destroy relevant evidence by not preserving the temporary cache files that presumably were created on its computers when it viewed the web pages? Noting that the temporary files were probably deleted within days of the viewing, and that the Harding firm was not put on notice of a claim until months after the viewing, the Court held that the Harding firm could not be guilty of destroying relevant evidence. To put this in perspective, Healthcare’s argument was that as soon as the law firm viewed these files it should have anticipated legal claims against it, and shut down the computers used to preserve the temporary files. Judge for yourself the merits of this argument.

Third, did the Harding firm violate the Digital Millenium Copyright Act by reviewing old versions of Healthcare’s website on the Wayback Machine? As I explained in the original article, the Wayback Machine (described in detail by Wikipedia here) began archiving web pages in 1996. Since web sites frequently change, the Wayback Machine takes billions of “snapshots” of website pages and preserves them. Needless to say, this is a great resources for lawyers.

However, if you own a web site and you don’t want to be archived by the Wayback Machine, you can opt out. The Wayback Machine permits website administrators to use the voluntary SRE (Standard for Robot Exclusion) to identify files or directories that cannot be “crawled” and indexed. Exclusion is accomplished by inserting a file called robots.txt on a web server. According to Internet.org this not only prospectively excludes a site from being crawled, but will “exclude any historical pages from the Wayback Machine.”

It turns out that this method is not foolproof. On the fateful day that the Harding firm accessed Healthcare’s old web pages on the Wayback Machine, the Wayback servers malfunctioned, and certain pages that carried the robots.txt file were not blocked from access. This, however, was invisible to the Harding firm – they had no hint that they were accessing the pages against the wishes of Healthcare, and due only to a technical malfunction.

These facts didn’t deter Healthcare, however, which accused the lawfirm of violating the Digital Millenium Copyright Act (DMCA). Section 1201(a) of the DMCA states: “No person shall circumvent a technological measure that effectively controls access to a [copyright] work protected under this title.” Healthcare claimed that robots.txt is a technological measure that controls access to the archived copies of its web site, and that the Harding Earley law firm circumvented that measure.

If this argument doesn’t make much sense to you (how could Harding have circumvented a technological measure if it simply accessed the Wayback Machine site, and had no idea that the Wayback Machine site was malfunctioning?), it also didn’t make much sense to the judge, who dismissed this claim.

Fourth, and lastly, did the Harding firm violate the Computer Fraud and Abuse Act (CFAA), a federal law that makes it illegal to access a computer without authorization, or in excess of authorization? Healthcare’s position was that the Harding’s firm exceeded authorized access, despite the fact that it was the Wayback Machine’s servers that malfunctioned and permitted that access. The Court dismissed this claim, noting that the Harding firm did nothing more than view web pages delivered from a public website in the manner the website was designed to deliver the pages.

The extraordinary thing about this decision, to my mind, is the time, effort and expense (the Harding firm spent over $170,000 in fees and expenses) that went into defending against allegations that should (in this writer’s opinion) never have been brought in the first place, or at least dismissed once the facts were clarified for Healthcare. Instead, the case dragged on for two years; the docket sheet has around 80 entries; both sides hired computer experts, and in the end the case was dismissed on summary judgment, in a decision where the judge spent almost 40 pages analyzing each claim made by Healthcare and dismissing it only after rigorous and in-depth analysis which went, in my opinion, far beyond the call of duty.

Oh, I almost forgot to mention – Healthcare has filed an appeal.

Previous post:

Next post: