Judge Robert F. Kelly of the Eastern District of Pennsylvania ruled that viewing archived web pages, even pages that the owner intended to keep private, does not constitute copyright infringement or “hacking.” In Healthcare Advocates Inc. v. Harding, Earley, Follmer & Frailey et al., 2007 WL 2085358 (E.D. Pa. July 20, 2007), the plaintiff unsuccessfully alleged copyright infringement, violations of the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act, conversion and trespass to chattels.
Law firm Harding, Earley, Follmer & Frailey LLP used a website search engine called the Wayback Machine to locate and print archived web pages central to a copyright matter it was handling for a client. An employee of the opposing party in the underlying case inserted a special line of code in the web pages’ “robots.txt” file to prevent the pages from being archived. Despite this extra code, Harding Early was nonetheless able to view some of the web pages.
The court ruled that although Healthcare Advocates satisfied the test for copyright infringement, Harding’s access constituted a fair use under the Copyright Act because Harding was not planning to resell the material or use it to undermine the web site owner’s business.
The judge also granted summary judgment against the plaintiff on its DMCA claim because the evidence did not show Harding used any improper “hacking” process to view the web pages. A technical server error caused the Wayback Machine to inadvertently reveal the files. There was no circumvention of a technological measure, which is an element of a DMCA claim. 17 U.S.C. § 1201(a)(3)(A). The plaintiff’s own expert agreed that Harding did not “hack” the web pages. Finally, the court ruled in favor of Harding on the Computer Fraud and Abuse Act claim, because Healthcare Advocates did not show the requisite minimum $5,000 loss.
If your business has been accused of copyright infringement, experienced counsel can advise you regarding whether there are any affirmative defenses that you can raise that may allow you to have the claims dismissed in a pretrial motion.