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More on Silly Lawsuits - Internet Archive and the BBC Flap
Wednesday, July 13 2005 @ 05:11 PM EDT

Now some legal genius has decided to sue the Internet Archive, because their robot.txt file didn't stop a determined law firm which somehow twice managed to bypass it. They are also suing that law firm and specifically mention their paralegals. Yipes. I don't like that trend.

They are claiming DMCA violations, natch. The DMCA is always handy when you want to be bad. They are seriously claiming that a robots.txt file is a bypassed "technological measure." Um. I don't think that will fly. It's just text on a web page. They also claim damages, and more ominously they accuse the defendants of a criminal conspiracy. But note that they claim actual damages under the DMCA for each time the law firm "circumvented" and any "profits" that they realized. Huh? Did they actually read what they wrote? They must have some theory to float such a sentence, but so far, it's in their own minds, or at least it didn't compute in mine. If that doesn't work, they ask for statutory damages. That section right there is the part that tips me off that the legislators who wrote the DMCA didn't have this type of situation in mind. May I inquire just exactly how much this litigant can charge for its web site these days on the open market?

Oh, and they want the court to order the destruction of the law firm's computers.

Hey. Now we're in Silly Litigation Land, for sure. The DMCA has that part in there to shut down copyright infringing businesses, not law firms doing an investigation in litigation. I'm *sure* the judge will order that. Not. They also ask for "such other relief as the Court deems equitable and just". That is boilerplate language you always include, but in this case, I'm not so sure they want the judge to start thinking deeply about what would *really* be equitable and just.

They have caught the SCO Evil Legal Theories disease, methinks. I have always believed that this is exactly what SCO had in mind in the beginning, a DMCA takedown of every Linux user if they didn't pay up, or in the alternative, destruction of their computers. It's the kind of wild stretching of the DMCA we saw in the garage door case fall to the ground in tatters. Anyone who tried to warn the world what would happen if the DMCA was ever passed can now say, I told you so. There is now a real world example of just how bad it can get. Exhibit A.

But they are also using the Computer Fraud and Abuse Act (shades of SCO against IBM, if you recall that nonsense), and also trespass to chattels, conversion, conspiracy, no less, promissory estoppel, breach of fiduciary duty, negligent dispossession, breach of contract, negligent misrepresentaion, and "intrusion upon seclusion."

Hahahaha. Lordy, lordy. They are killing me. Seclusion. Seclusion on the Internet. Right. How old are these lawyers? Do they grok the Internet at all? I believe I have put my finger on the problem exactly. It's not age, really. It's more a state of mind and a matter of what you know about computers and whether you get what the Internet is for and what it can do. If they want total seclusion, they should make their content available only to subscribers or something like that, or get off the Internet. You can't reap the benefits of the Internet and expect 100% privacy at the same time. That is an option they failed to make use of, as far as I can tell from the complaint. I'm not advocating a free-for-all, or copyright infringement, and frankly, the Archive lets people opt out, for that very reason, and because it's the decent thing to do. If someone doesn't want you on their property, nice people say OK and comply. But if you are seriously wanting to be 100% private, the Internet probably isn't for you, and you should get off entirely or restrict access by membership or something like that and thus build a moat around your castle and lift the drawbridge. The Internet is what it is. And fair use still exists, so you need to factor that in too.

This litigant asked to opt out, using the robots.txt notice, which is what it is, just a notice, words on your website, the robots look for and can react to, and they wanted it to work without a hitch. They say Internet Archive represented to them that the robots.txt file would prevent the world from using that service to access old versions of the firm's web site. Yet, it failed on a couple of occasions, and they wanted to know the reason why. Unfortunately, the representative for the Archive told them the truth when they asked, that it isn't a 100% perfect system, so now they are being sued for being truthful, I guess. They did take steps to address the law firm's concerns, but it still wasn't perfect. Computers. Software. Without a hitch. Puh-lease.

But here's the part that is amazing to me. It all happend in connection with a law suit. The access to the materials was in connection with an investigation, trying to find proof of innocence. Is the DMCA really intended to prevent that? A little common sense, please. What happened is that this law firm for the plaintiff, HealthCare Advocates, in litigation with another company, found out that the law firm for the defendant was secretly finding materials and showing them to the judge, and when HealthCare Advocates lawyers asked for copies, they were refused. That is their copyright infringement.

What? These guys never heard of fair use? Copyright infringement when you are trying to defend yourself from a claim you believe to be false, and you see a way to do it by showing the judge what you found on the Internet? What is the argument here, that a company gets to say whatever it wishes in its complaint, and your victim is not allowed to prove you wrong? Maybe their answer to that would be, you can prove it wrong, but only if the other law firm asked Health Advocates to provide the older web sites in discovery. Judging from this mean-spirited complaint, at least to my taste, I seriously doubt the plaintiff would have turned over anything useful. What do you want to bet they would have said they didn't have any old stuff hanging around any more? What I see in this complaint is fury that it didn't work out that way.

I think they are forgetting the significance of what they mention in the complaint, that the Internet Archive works in cooperation with the Library of Congress and the Smithsonian. I believe if this litigation is successful, which I doubt, a law could just be passed to make it impossible for anything like this to happen ever again. That is surely in the power of Congress to do, and considering the value of such an Internet Library to the world, I see it as a possibility.

You don't need laws to regulate nice people. You need them for the cussedly mean. Extrapolate.

You can read the Complaint [PDF] for yourself, thanks to the Patry Copyright Blog, which found it so we don't have to. You'll find his explanation very thorough and interesting too. The complaint will make you mad, so fair warning.

Here's another lawyer on Corante's take on it (more or less wondering how Internet Archive has the right to do what it does in the first place). But aside from fair use arguments, there is another issue. If you publish a book, can you later say no one is allowed to read it, if they find it in a library somewhere? What about if they find it at a library giving away old books? Is a library allowed to do that? What about a yard sale? You know book copyright doesn't cover such things. Why would digital copyrights?

You can say no one is allowed to read your page for free, I suppose, or only in this way or in that place, but can a copyright holder say you can't read it *at all*, once it is published? That you are de-publishing it? I don't think so. Maybe one of my lawyer readers will be able to answer that question. But if not, how can a web site say that no one is allowed to read what they earlier published openly? Again, I know they can restrict how and when and for how much, that kind of thing, if it's their web site (that is why the book analogy doesn't quite fit perfectly).

I'd be researching what restrictions the web site placed on use of the page, their terms of use, if I were working on the case for the Wayback Archive side, for starters, regarding the trespass to chattels claim. If you don't know what that is, here's the definition. Notice all that the law firm will have to prove, and I don't see how they can, personally. After reading their claim on trespass to chattels, I believe they have failed to meet the elements, as least so far. This article by Dan Burke, "The Trouble with Trespass," is my favorite on the subject. When lawyers start to get creative, watch out. Here are some trespass to chattels cases, if you are interested. The EFF has an analysis of the theory.

And there is a second issue I see. People have fallen in love with Google and what search engines can do. If push comes to shove and we have to choose which we want to keep and can have only one, it isn't going to be copyright oppression. Notice I didn't say copyright. But I do believe the DMCA and some of the more draconian laws about computers will be tweaked to reflect reality. The world is not going to give up Google or the Wayback Archive. They are too useful.

Here's one use. Trademark law firms use the Archive all the time to trace trademark offenses. It's a vital tool, because you can show it as it happened, tracing the timing of the offenses. I almost hate to explain it, because I can see companies all over the world telling Internet Archive they don't want to be on it any more. I understand both sides of this conflict, by the way. From a legal perspective, it's the lawyer's job to get rid of vulnerabilities that can get their client sued. This is the kind of thing that happens every time there is a new technology. First, everyone screams "illegal", they they negotiate, or the courts work it out, and then, if needed, new laws are passed to fix the conflict. We've been in the "illegal" phase for quite a while, but the Grokster decision convinced me that the negotiation phase has begun now. The plaintiff here calls the party accessing their old web pages "Hacker #1" and "Hacker #2". That's not nice, because it assumes guilt, and by the way, it's not accurate either. Hacker means someone who knows a lot about using computers and writes software really well. They probably meant "Cracker #1", but that isn't nice either. It's like calling someone a pirate, when they listen to your music without paying you first. They should pay you, if you want to be paid, but calling them pejorative names is also wrong, as one judge already told the music industry lawyers. Anyway, clearly this law firm is stuck in the "cry illegal" phase, and they don't seem to me to know very much about tech.

The BBC Silliness

And I'm sure you read about the BBC taking flak for letting us download Beethoven. I downloaded it quickly myself. It seems that some feel the BBC is failing to extract every last stupid dime from their assets and in so doing is threatening to destroy the world as we know it. Here's what the BBC is doing to try to deal with patents in media files, according to an article, "The BBC Seeks Escape from Patent Minefield", by Neil McAllister of InfoWorld:

New technologies may be the last hope for a licensing-free future for multimedia. [Although] open standards and open formats are becoming the preferred means of delivering digital documents, the picture isn't so rosy for multimedia. The BBC wants to change that. Supported by public funds, the BBC is committed to providing free and open access to audio and video media to a wide audience.

But even for the largest broadcast media organization in the United Kingdom, breaking the grip of proprietary digital media standards isn't going to be easy. Anybody is free to license MPEG standards -- just as long as they pay the fees. The obvious losers in that kind of deal are open source projects, which often are but loosely knit groups of individuals in no position to pay any kind of fee, no matter how "reasonable." But potential users of those projects lose, as well.

This is an issue that is not going away. The old guard wants the world to keep turning the way they are used to, but it has moved on, and FOSS is here. It is not going away. A change in standards bodies' ways of doing things, particularly the fees issue, has to follow. More on that later.

A reader sent me his favorite RIAA-free music source. The web site, Free Music, opens with a quotation from Beethoven:

"There ought to be but one large art warehouse in the world, to which the artist could carry his art-works, and from which he could carry away whatever he needed. As it is, one must be half a tradesman." -- Ludwig van Beethoven, January, 1801

If you have some you like, could you let us know about them? Here's the new BBC open source projects repository.

Roll over, Beethoven. What you wanted is finally happening. And a hint to the critics of the BBC Beethoven downloads: this is what Beethoven would have wanted, dudes. He said so. And did you notice what he wanted was not only to put his music somewhere to make it available, but also to "carry away whatever he needed"? It's a concept that is called sharing, and it's impossible to be creative fully without that cross-pollination process. No one creates in a vacuum.

Just a friendly toot from the Cluetrain.


More on Silly Lawsuits - Internet Archive and the BBC Flap | 333 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: Anonymous on Wednesday, July 13 2005 @ 05:22 PM EDT
mote -> moat

[ Reply to This | # ]

More on Silly Lawsuits - Internet Archive and the BBC
Authored by: kenryan on Wednesday, July 13 2005 @ 05:25 PM EDT
> They are seriously claiming that a robots.txt file is a
> bypassed "technological measure." Um. I don't think that
> will fly. It's just words on a web page.

It's as much a "technological measure" as the Broadcast

(speaking only for myself, IANAL)

[ Reply to This | # ]

Off topic here please
Authored by: ChefBork on Wednesday, July 13 2005 @ 05:48 PM EDT
Please make links clickable.
Example: <a href="">Click here</a>

If two heads are better than one, then why are liars two-faced and being of two
minds indecisive?

[ Reply to This | # ]

Corrections here
Authored by: rocky on Wednesday, July 13 2005 @ 05:50 PM EDT
I'll start it off:
mote -> moat

[ Reply to This | # ]

Hypothetical legal question
Authored by: Jude on Wednesday, July 13 2005 @ 06:02 PM EDT
IANAL, so this may be a dumb question, but I'll ask anyway.

Plaintiff seems to think that they have some kind of right to make public
statements (IE, put stuff up on a public website), and then later pretend they
never did so. Is there any legal basis for such a belief?

[ Reply to This | # ]

The Internet Archive and "fair use"
Authored by: N. on Wednesday, July 13 2005 @ 06:02 PM EDT
This is something I've been worrying about ever since I saw it. I've always
understood "fair use" to be selective quoting ir reviewing of
copyrighted work. The IntArc is straight wholesale copying. Yes, the IntArc has
an "opt-out" method, but what's to prevent a second archive being
started up which did the same thing? Saying "it's very useful" is a
strong argument to justify that, but the same argument could be used to justify
breaking other laws.

What I'm getting at it that it just doesn't fit in with copyright law. It's
wrong to distribute photocopied in-print books in the streets, so why is it OK
to distribute other people's webpages from someone else's server? The existence
of an "opt-out" method doesn't imply that the copyright holder has
opted in.

(Now almost completely Windows-free)

[ Reply to This | # ]

Put your favourite RIAA-free music site here
Authored by: nerd6 on Wednesday, July 13 2005 @ 06:05 PM EDT
I'll kick off this thread with my favourite:

This site has lots of good music, which you can listen to as much as you like for free (via streaming).

If you want to download music files, CD artwork, etc, then you pay US$5 or more per album (you decide how much the music is worth) and they offer the downloads DRM-free in multiple formats - mp3, ogg, flac, wav, etc. So you get CD-quality music for as little as $5 per album. 50% of the money you pay goes to the artist.

My brother-in-law says that one of his friends is a classical guitarist, who has signed up with one of these RIAA-free web sites. He earns $70-$80k per year from the web site which is far more than he could ever earn from his music here in New Zealand (NZ is a very small market). So he is very happy.

[ Reply to This | # ]

BBC & Beethoven
Authored by: N. on Wednesday, July 13 2005 @ 06:10 PM EDT
The Beeb is safe, IMHO. The Beethoven tracks were recorded using either licence
fee payers money, or profits derived from licence fee payers money, so there's
no reason why Brits can't access the recordings. Maybe there's an argument
against foreign access, but it's a weak one. Of course the Beethoven tunes
("scripts"?) are long out of copyright and in the public domain now.

The problem might be the next logical step: the BBC releasing their whole
classical collection (or at least the parts which aren't encumbered). That would
indeed dent the classical market, but still not against the law, and no one else
is prevented from performing or recording Beethoven works because of it. They
just have to hope that people would prefer their performance to the BBC's.

(Now almost completely Windows-free)

[ Reply to This | # ]

More on Silly Lawsuits - Internet Archive and the BBC Flap
Authored by: Anonymous on Wednesday, July 13 2005 @ 06:16 PM EDT
It seems that some feel the BBC is failing to extract every last stupid dime from their assets and in so doing is threatening to destroy the world as we know it

Actually that's not the main issue with the BBC.

The main issue is that the BBC is using a pseudo-tax (British TV license fees which are required to be paid for every British household with a TV) to fund their entry into the market in a vast variety of different commercial fields. The Beethoven thing is just one of a series of similar complaints where the BBC has entered markets, and funded their entry into markets not on a profit-loss basis similar to commercial enterprises, but using the pseudo-tax of the license fee. Other examples include entries into such things as a variety of software fields, all kinds of various media and media-related endeavours and so forth. (and no not all the BBC's market entries are all "free" or even "open source", many are in all but name, commercial endeavours).

If you want an analogy, imagine you own a shop (or whatever other business you choose to name). Then Mr Beeb sets up next door with their own shop, selling almost the same stuff as you, but for pennies, or a massive loss. Mr Beeb can do this, even if his shop is losing money hand-over-fist, because he has humongous amounts of funding, not related to his shop business, but because practically every person in the country is required by law to pay him ~$200 per year simply to ensure that Mr Beeb is able to operate a line of shops nationwide and worldwide.

(None of which is to say that the BBC doesn't produce good TV programs).

I don't have a solution, but the root of the complaint, and the root of a real problem, is that the BBC is neither fish nor fowl. It's part pseudo-tax-funded public service, it's part a semi commercial enterprise, and the two are intermixed.


[ Reply to This | # ]

RSS Feed Problem
Authored by: Anonymous on Wednesday, July 13 2005 @ 06:38 PM EDT
This may not be the right place for this, but I couldn't
find a better one...

The RSS news feed seems to have developed a duplication
problem. Starting on July 8 some stories were reported
twice. Since yesterday, every new story gets reported 4

[ Reply to This | # ]

I can't help but wonder ...
Authored by: Anonymous on Wednesday, July 13 2005 @ 06:45 PM EDT
... if the Internet Archive lawsuit and other nuisance
lawsuits would have happened if the SCO-IBM lawsuit had
not taken so long.

SCO has demonstrated you can keep a lawsuit alive for three
years, and possibly four, without a shred of evidence.

The word is out. Other companies are saying, "we can do his,
too." And maybe extort a settlement from companies much less
well off than IBM.

[ Reply to This | # ]

Maybe not so OT
Authored by: Anonymous on Wednesday, July 13 2005 @ 07:00 PM EDT
About 15 of the latest Harry Potter books got sold early. If I understand
correctly, the bookstore told (not asked) the buyers to return them, and to not
let anybody else see them.

Now, IANAL, but I don't think they had any right to tell the buyers to do
anything whatsoever. Under the first sale doctrine, they also didn't have the
right to keep one of the buyers from offering their copy for (re-)sale for
$100,000, or whatever they felt they could get.

While not perfectly parallel, this seems to have some similarities to the
Wayback case. Once you sell it from a bookstore, it's gone. Once you print it
in a newspaper, it's gone. Once you post it on the Web, it's gone. Game over.


[ Reply to This | # ]

What about printing out a web page?
Authored by: Anonymous on Wednesday, July 13 2005 @ 09:14 PM EDT
Would that make IE, Mozilla and the rest a technology which aids and abets
copyright violations? These programs do not attempt to get permission before
allowing printing and copying... heck, you can even copy someone's HTML code!

How far into the realm of the absurd does this have to go?

[ Reply to This | # ]

... try, try, again.
Authored by: Latesigner on Wednesday, July 13 2005 @ 09:27 PM EDT
Healthcare Advocates tried something like this before and the judge threw it
Article here (needs registration):

I'm not sure what they hope to gain from it since neither the law firm nor the
Internet Archive seems to be impressed.

The only way to have an "ownership" society is to make slaves of the rest of us.

[ Reply to This | # ]

More on Silly Lawsuits - Internet Archive and the BBC Flap
Authored by: Anonymous on Wednesday, July 13 2005 @ 09:35 PM EDT
Trade secrets are similar too. Once it is out, it is out. You can't stuff it
back. Hence, in many such cases, the defendant almost invariably claims that it
is already in the public domain, that someone had already published, that
someone had already made an announcement, etc. The company I currently work for
is involved in one such case.

[ Reply to This | # ]

  • Trade secrets - Authored by: Anonymous on Thursday, July 14 2005 @ 01:55 PM EDT
How Much Money Does Beethoven get?
Authored by: Anonymous on Wednesday, July 13 2005 @ 10:41 PM EDT
Doncha love all these tight fists around work created by
others, clutching desperately to own and profit by it?
Some might call it thievery.

[ Reply to This | # ]

Authored by: m_si_M on Wednesday, July 13 2005 @ 10:46 PM EDT
Just in case someone over here has never listened to Beethoven's 9th symphony or
never read Friedrich Schiller's wonderful lyrics, I'd like to recommend all
Groklaw readers to make up for it.

Beethoven's 9th is the "soundtrack" of the age of enlightenment, and
Schiller's writings are a most impressive pleading for freedom and tolerance.

If Richard Stallman, Schiller, and Beethoven had been living in the same age,
they would probably have become good friends, since FOSS *is* enlightenment.

[ Reply to This | # ]

  • Beethoven - Authored by: Anonymous on Thursday, July 14 2005 @ 01:13 PM EDT
Is Google in trouble?
Authored by: Anonymous on Wednesday, July 13 2005 @ 11:40 PM EDT
Google is not a government related entity with links to the LoC. Google
regularly screens search content. (Warez sites, Phreak sites, Cracker sites,
Bad keywords for some governments...)

Does Google have exposure, under this strange legal thinking, to the same type
of lawsuit? After all, Google can point to lots of stuff, if you ask it the
right way.

IANAL, yada yada...

-- Alma

[ Reply to This | # ]

The disturbing element-hide your sins.
Authored by: Anonymous on Wednesday, July 13 2005 @ 11:42 PM EDT
I would think the disturbing element in these types of allegations is the
attempt to whitewash what a company once made public.
It is really no different than presenting an old advertisement to show the
company in fact published it.
Hiding and deleting information is bad enough. Being able to sue others for
presenting a true representation is outrageous.

Are you a bagel or a mous?

[ Reply to This | # ]

Depublishing a book, and restricting access to a web page
Authored by: Anonymous on Thursday, July 14 2005 @ 12:32 AM EDT
Actually, we have two very different issues here.

First, you cannot "de-publish" a book.

I use the old copyright law as some guidance, the one that was replaced by the
current law. Some lawyers would criticize the practice.

Under the old law, one condition of granting a copyright was depositing two
copies of the copyrighted document with the U.S. Library of Congress. U.S.
citizens may still go to the Library of Contgress and read all the books there,
subject to certain limitations intended to preserve the integrity of the books.
Some books are so crumbly that to read them once would destroy them, and some
have pages that are so valuable that theives made a practice of cutting them out
with razor blades and selling the stolen pages for expensive wall hangings.

The thought of trying to "de-publish" a book at the Library of
Congress would be a joke.

"De-publishing" a document under the current Federal copyright
statutes is similarly rediculous.

A different issue is violating a website's terms of access, as posted by the

Groklaw readers are familiar with the concepts of "contracts of
adhesion" and "unilateral contracts": one party presents the
prepared terms, and the other may not negotiate, only take it or leave it.

An owner of a web site may post a unilateral contract, a contract of adhesion,
and insist that the terms be followed. Those who access the web site pages have
impliedly accepted the terms of the contract.

*However*, the next step does not necessarily follow, that copyright law may be
used to prevent *all* further uses. The "Fair Use" doctrine
encompasses more than merely extracting an incomplete copy. Although I have no
case law at hand to support my position, I am reasonably sure that I could find
a half-dozen or so Federal Appellate Opinions with fairly similar facts, that
would say that a non-commercial use in the context of proof-of-facts in a
courtroom constitutes "Fair Use".

Part of what drives my personal assurance is the innate way that courts work.
Judges are powerful people. They are used to getting what they want, when they
want it. Most of our problems with the conflict between personal privacy and
court access are a direct result of judges insisting that they, personally, be
allowed to bring things into court, even though some individual's privacy rights
are being crushed in the process.

The use of a website access contract to prevent use of discovered information in
a court proceeding is very remote. Though stranger things have happened, it is
about as likely as a piece of tissue paper stopping a flying bullet.

The other big issue is one of damages. Normally such damages are computed as a
matter of lost sales revenue to the copyright owner. There was no revenue to be
had here in the first place, so there was no lost revenue. Also, the
documentation was presented to the trial judge in the context of demonstration
of information, not as unauthorized release of the owners uniques
"expression". The trial judge did not want to read all this stuff in
the first place. He or she has other work to do, and would just as soon have
the parties settle this mess, and get on with other cases.

Finally, this should be considered similarly to pornography, and I am
specifically not referring to child pornography here. Child pornography is a
very different issue.

Pornography may be specifically prohibited by statute in some places. So what
happens if a store clerk is prosecuted for selling pornography, appeals his
conviction, and in the dissent, the losing appellate court judge includes a copy
of the allegedly pornographic material? It gets published anyway.

A standing joke in law schools is that some law students read the casebooks just
for the pictures, and skip the text. That is a joke because most class
casebooks have no pictures or diagrams whatsoever.

The allegedly pornographic picture described above was one of the few non-text
images that appeared in my casebooks.

To restate the point: in that instance, there was more than a mere contract.
There, a State statute forbid the publishing of the information, yet it appeared
in print anyway.

[ Reply to This | # ]

more on robots.txt
Authored by: Anonymous on Thursday, July 14 2005 @ 02:20 AM EDT

There is a robots exclusion protocol[1] which tells this about robots.txt (emphasis by me):

Note that these methods rely on cooperation from the Robot, and are by no means guaranteed to work for every Robot. If you need stronger protection from robots and other agents, you should use alternative methods such as password protection.

I think there is nothing more to say...


[1] clusion.html

[ Reply to This | # ]

More on Silly Lawsuits - Internet Archive and the BBC Flap
Authored by: Anonymous on Thursday, July 14 2005 @ 04:16 AM EDT

User-Agent: *
Disallow: /

Presumably you don't mind me browsing or posting here if I am a robot?

[ Reply to This | # ]

And then there is cashing.
Authored by: Anonymous on Thursday, July 14 2005 @ 05:34 AM EDT
And then there is cashing, it happens
on every Node and every Proxy on the internet.
The Way Back Machine is only cashing it a little longer :-)

What will the next lawsuits be about?
How long you may keep someting in your cash?
If you make a backup of your machine,
may you also backup the cash?


[ Reply to This | # ]

Internet Archives and Copyright
Authored by: Anonymous on Thursday, July 14 2005 @ 06:03 AM EDT
I think they are forgetting the significance of what they mention in the complaint, that the Internet Archive works in cooperation with the Library of Congress and the Smithsonian.

Venerable institutions they may be, but to the rest of the world (the other 96%), that is all they are. Internet copyright is only meaningful on an international scale.

The problem with copyright is changing technology. If someone made a speech and it was published verbatim in a newspaper, I would not be allowed to copy it or even to read it aloud in public. If a recording company made an audio recording of the speech, I would not be allowed to copy it or play it in public. However, if I listened to the recording I would be perfectly entitled to make my own verbatim written copy of it which I could do what I liked with.

If such a simple example can be so stupidly complex, what chance have we with the Internet? If someone publishes a photograph on the Internet that they want to sell prints of, then I think it would be generally accepted that you should not copy it. But (and this was actually a real issue) supposing a news site makes a link to another news site? Good publicity for the target site, or are they just having their exclusive scoop stolen? A URL changes hands (thinking, the new owner wants all copies of the old site removed from the archives - fair, or not fair?

International agreement is also a problem. Thinking back 40 years. I read that in Russia there was no copyright on an LP on the quite rational grounds that the players have been paid for the performance and that is the end of the matter. Likewise, in Japan, if someone sees a painting they like, they may have a copy painted for themselves; not only is this legal and ethical, but the copy is considered to be as valuable as the original and nobody cares which is which.

I cannot see any of this ever being sorted in the forseeable future. Laws will be made and lawyers will grow rich, but choas will reign.


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Why not spammers?
Authored by: jmc on Thursday, July 14 2005 @ 07:07 AM EDT
You can see how silly this suit is by considering the fact that spammers
routinely ignore robots.txt to "harvest" email addresses and no one is
able to sue them for it.

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More on Silly Lawsuits - Internet Archive and the BBC Flap
Authored by: Anonymous on Thursday, July 14 2005 @ 07:18 AM EDT
PJ, you wrote:

the legislators who wrote the DMCA didn't have this type of situation in mind

I am of the opinion that the legislators who wrote the DMCA had only one situation in mind: the situation where they protect "their" interests and they make big piles of money.

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Only Internet Archive affected by robots.txt?
Authored by: Anonymous on Thursday, July 14 2005 @ 07:50 AM EDT
User-agent: ia_archiver
Disallow: /

So..... If a set up a new archive for them, by they're legal viewpoint, I would be in the clear.

Question: Given that the website involved is anonymous,public access. Do they have the right to make a exemption for a specific user,group,company vs. a class of user such as search engines? If I were store, I could say "all welcome except Mr. Black", yet "all welcome except that black guy" would bring in ACLU faster than a fingersnap as well as being illegal.

So, for their legal viewpoint, search engines would have to be "legally required" to follow the specifications of robots.txt. I've never heard of any such law. An RFC is not a law or regulation, just a specification of desired behavior or design.

Now, to be able to prove someone ignored the robots.txt file, the plaintiff would have to provide evidence that the file was always correct and available. Log files, file permissions documented, edits documented, server specs(was unable to serve up robots.txt for some reason?), server load at the time, what was the time, was connection between user and host good enough or were there timeout and/or routing issues? To me, this means the onus of the plaintiff is to prove that

  • the web server was up and running 100% with zero downtime
  • 2) robots.txt was always accessible and not changed or changes documented
  • connectivity from server to client across the Internet was never an issue
  • I certainly don't envy the lawyer who has to prove the Internet is 100% uptime, virus free, constant connectivity to all users around the world. I dare him to try just getting the DNS main server logs into evidence, let alone all the routers,switches, etc. from all the ISPs in the world. Oh, and logs from all the users verifying no one had Internet problems.

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    Robots.txt is not access control
    Authored by: Anonymous on Thursday, July 14 2005 @ 07:50 AM EDT
    The original goal of robots.txt was to shield cgi-bin directories, to protect
    Robots from infinite loops and to protect webservers from unintended
    Denial-of-Service. It certainly doesn't mean that you request *nobody* to access
    the page. It doesn't even request normal users (using their browsers) to stay
    away. If normal users can read *and store* the page, why can't others archive
    it? (Actually, the technical story is so vague that maybe such a thing happened
    - the law firm learned about the existence of certain directories through the
    Wayback archive, and then tried to type in those URL's at the plaintiff's

    IMHO, somebody who willfully bypasses robots.txt is reponsibly for any
    Denial-of-Service that results from it. But copyright simply has nothing to do
    with it.

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    Definitely Germane: Google and Wayback mentioned in re copyright
    Authored by: Anonymous on Thursday, July 14 2005 @ 08:42 AM EDT
    According to a post on slas hdot, a bill introduced in the House of Commons in Canada could make Google and other search engines illegal for violating copyright. According to the post, "Bill C-60, which amends the Copyright Act and received its first reading in the House of Commons on June 20, suggests it could be illegal for anyone to provide copyrighted information through "information-location tools," which includes search engines." I've quickly scanned the referenced article and wanted to post now so that others could be thinking/reading/discussing it while I'm re-reading it and checking out what slashdotters have to say. I know once I started that, I'll either get hooked or get pissed off and either way I might forget to post.

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    More free stuff from the BBC: The Power Of Nightmares
    Authored by: Anonymous on Thursday, July 14 2005 @ 10:21 AM EDT
    which you can now get from the Internet Archive...

    -- You author it, and I'll reader it.

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    Thius would be silly without the ineternet!
    Authored by: seanlynch on Thursday, July 14 2005 @ 10:58 AM EDT
    Firm A a places an add in the local newspaper that has some information in it.

    The add runs for a week and never run again.

    Some time later Firm A and Firm B are involved in a lawsuit. Firm B's lawyers,
    in the course of research, find an archived copy of the old newspaper add in the
    microfiche files at the local library. They use the information in the add to
    show Firm A made some claim at some time in the past.

    Firm A sues Firm B, Firm B's Lawyers, the library, the librarians, the custodian
    and the janitor at the library (if the custodian had not fixed the leaky roof,
    and the janitor had not cleaned up the rain water, the microfiche would have
    been destroyed by mildew. Their nefarious work has aided in the vile and evil
    plot by Firm B and Firm B's lawyers).

    This is a very silly lawsuit.

    Maybe we should start a new circuit of courts, and send the silly lawsuits
    there. But these must be special Courts like Courts Marshal, where the case law
    in the Silly Circuit only applies to the Silly Circuit.

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    Missing the point?
    Authored by: Anonymous on Thursday, July 14 2005 @ 11:10 AM EDT
    So far, the posts I am seeing are strictly about the web page content, assuming
    it is generic text. What about trademarks, logos, and other images? It there a
    valid complaint if the wayback archive (or some other cache) contains a
    trademark, that it then publishes on the web, without the owners explicit

    Does it fall under fair use if the images are kept with the entire page intact?

    IANAL, yada yada

    -- Alma

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    BBC releasing its own performances.
    Authored by: eibhear on Thursday, July 14 2005 @ 11:46 AM EDT
    I have no music training, and little understanding of the technicalities of

    However, all my in-laws are genuinely talented and interested. My father-in-law
    has a wide collection of classical performances. Many pieces of music he has
    bought more than once. Why would he do this?

    Because, not only is the piece of music important to him, but so is the quality
    of the performance. A classical piece of music, to the untrained ear, is the
    same no matter who performs it. However, those who are more interested in
    classical music know full well that a performance by Jacqueline Du Pré, for
    example, would be of far greater quality than many other cellists.

    As many classical pieces are in the public domain, anyone can perform them and
    sell recordings of those performances. Now, recordings need to compete on the
    quality of the performace or the interpretation of the piece or on any of many
    other considerations.

    The record companies that are complaining about the BBC is acting as though a
    recording of a 200-year-old composition is the same as a recording of a brand
    new song by, for example, U2. They don't compare. The labels should know better
    than to jump onto the reactionary bandwagon driven by the RIAA and its


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    Harry Potter and the B.C. Injunction
    Authored by: Trepalium on Thursday, July 14 2005 @ 02:06 PM EDT
    A short time ago, copies of the new Harry Potter books were sent to a grocery store in Coquitlam, BC. The distributor forgot to place an "embargo" label on the package, which would've instructed the store not to sell the books until it's release date. Since the label was absent, the grocery store put the books on the shelf, and 14 people purchased copies of them.

    Raincoast Books managed to get a court order requiring the following. Anyone who received the books is prohibited from disclosing anything in the books, may not display, or read the books, and must return the book to Raincoats Books. The ruling is terrifying because not only is the court requiring the surrender of property from people who did no wrong, but they're also effectively censoring them. It appears to go against the Freedom of Expression that we're supposed to be able to enjoy in this country.

    Even worse is what Raincoast wanted and didn't get from the injunction. They wanted a media publication ban on any aspect of the novel not authorized by them, wanted to compel purchasers to give complete contact information, and wanted to have full details on anyone the purchasers had spoken with regarding the novel. Unfortunately, even without those parts, the damage is done. A lot of innocent bystanders are being trampled in the interests of a large commercial copyright holder. All because of their own mistake.

    The injunction is readable at rypotter/injunction.html
    Micheal Geist has posted a few comments about this at his blog at
    A story about this

    I can't even begin to elaborate how disgusted I am in the B.C. Supreme Court for granting this.

    No Software Patents!

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    OT: Accelerando
    Authored by: vadim on Thursday, July 14 2005 @ 02:28 PM EDT
    Folks it a MUST read: a Free novel by Charlse Stross: Accelerando
    A small quote:
    Russian gangsters from New York bought the recording cartels a few years ago, you know? After the rights stitch-up fell apart, and the artists all went on-line while they focused on copy prevention technologies, the Mafiya were the only people who would buy the old business model. These guys add a whole new meaning to copy protection.

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    Internet Radio
    Authored by: Anonymous on Thursday, July 14 2005 @ 02:30 PM EDT

    I haven't looked into music downloading yet, because I've been too busy listening to Internet Radio.

    There are literally thousands of online radio stations, tailored to every taste, no matter how obscure.

    Two good places to start are and SHOUTcast.

    You can look for stations that you like by choosing a genre, or you can enter the names of artists you like, to find what stations include those artists on their lists.

    Prior to discovering Internet Radio, I hadn't bought any new CDs for years. I had given up, because there was nothing on the regular radio that appealed to me.

    Since discovering Internet Radio, however, I have bought almost 100 CDs in the last year alone.

    I am a living example for the theory that record sales had been dropping, not because of piracy, but because of bland, industry-controlled programming. I have no doubt that, rather than hurting, the Internet is going to _increase_ record sales.

    The record industry is going to change, however, due to the increased economic efficiency of Internet delivery. The path between artist and listener will become shorter, prices will drop, variety will increase, and the middlemen -- CD manufacturers and record stores -- will become mostly obsolete. However, if the RIAA is smart (don't laugh), they will realize that there is still a place for promotion, legal protection, and royaly collection. In other words, if they just stop fighting the new technology, they will still have jobs.

    Getting back to my main topic, while regular radio (with its limited bandwidth and expensive operation) must focus on audience-share and the greatest common denominator, Internet Radio stations can cater to niche listeners, like me. As a result, I have been able to discover -- and buy -- a lot of new music that I like.

    If anyone is curious, the type of music that I wanted to hear, that wasn't on regular radio, was 70s-style Progressive Rock and Jazz Fusion. Before Internet Radio, I was stuck listening to my old CDs and LPs, but now I've discovered new groups that play my music, such as Dream Theater, Anekdoten, KBB, Derek Trucks Band, and so on. In addition, now that I have some good sources of new music, I have been discovering other stuff, including more Indie groups like the Dandy Warhols, and more mainstream stuff that I missed, like Blur.

    In short, I think the new technology has done great things for music (certainly great for me), and the RIAA and artists should be embracing progress, rather than fighting it.

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    OT - Bill's cost of doing business
    Authored by: Stumbles on Thursday, July 14 2005 @ 02:34 PM EDT
    There is an interesting article over at Microsoft's lawsuit payouts amount to around $9 billion.

    You can tune a piano but you can't tune a fish.

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    Every legal theory except the one that might stick
    Authored by: Paul Johnson on Thursday, July 14 2005 @ 03:49 PM EDT
    Funny thing. When I read about this my immediate thought was that robots.txt is
    a form of copyright license in machine readable form. When you put a page on
    the Web you implicitly license it for downloading and possibly copying.
    Services like Wayback and Google cacheing are in an interesting gray area, but
    they are so pervasive and generally accepted that they could probably argue an
    implicit license simply because everyone knows that their pages will be copied
    if they are available. Anyway, it seems to me that this implicit license can be
    overridden by something more explicit, like a notice that you can view the pages
    but not save them. Then anyone saving the pages is in breach of the license.

    Robots.txt would seem me to have the same effect as a license in human-readable
    form: it modifies the implicit license by, for example, withdrawing permission
    from the Wayback machine or Google any other nominated robot to access, store
    and republish the pages.

    Of course robots.txt is usually described as "just voluntary", but
    that is technical thinking. Robots.txt lacks a technical enforcement mechanism,
    but that is no reason not to give it the force of law based on existing
    copyright law and the fact that it clearly expresses what the copyright owner
    (or his licensee) wishes to permit.

    This even works sensibly with the DMCA argument in this case. The license was
    described in robots.txt, and the Internet Archive tried to honour that by
    implementing in good faith a "technological measure" to control
    access. This measure was imperfect and was circumvented by the defendants. But
    that gives no cause of action against the Internet Archive.

    Now at present this is just a legal theory in my non-legal mind: AFAIK nobody
    has ever tried to argue it in court. But I'm surprised that the plaintiffs in
    this case have not done so. Instead they seem to have thrown every other legal
    theory they can come up with at the wall to see what sticks. If I were a judge
    I'd take an unsympathetic view of cases constructed like that.

    However I do think I see what the plaintiffs are doing. This case is actually a
    part of a larger case. The defendents in this case obtained evidence against
    the plaintiffs in the larger case. The plaintiffs are now trying to have this
    evidence ruled inadmissable on the grounds that it was illegally obtained. That
    is the real goal of this lawsuit.


    These ideas and others like them can be had for $0.02 each from your friendly
    local idealist.

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    When the Chickens come Home to Roost
    Authored by: Anonymous on Friday, July 15 2005 @ 06:37 PM EDT

    For sheer scale, none of these lawsuits, including the SCO lawsuit against IBM, have anything on the asbestosis claims scam, which is widely considered to be one of the most massive problems with the US tort system. Essentially, plaintiffs lawyers get a bunch of healthy people whom have been exposed to asbestos to file lawsuits seeking damages for anxiety and the fact that they might get sick. This has bankrupted most companies that have anything to do with asbestos, which means that truly sick plaintiffs (and asbestos causes nasty lung diseases) get nothing.

    The same scam has been happening in the silicosis field (a similar disease that involves lung damage caused by sand and other silica-based materials). However, a federal judge looked underneath the hood on this one and now it looks like one of the big plaintiffs firms is going to be indicted. http://www.abanet.o rg/journal/ereport/jy15silica.html.

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    More on Silly Lawsuits - is this a silly lawsuit?
    Authored by: Anonymous on Saturday, July 16 2005 @ 04:53 AM EDT
    Skim reading through the explaination of this lawsuit, I've come to the [partial] conclusion that it isn't as silly as first presumed.

    What IS silly is the law which it has used - the DMCA. It may not be what the DMCA authors intended, but it is to what it has led. If the DMCA hadn't been written, and passed, then this lawsuit couldn't have been filed. Bad laws lead to bad suits.

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