You may have read about the unusual case where a law firm was sued for going to the Internet Archive and printing out some pages it found there, to use as evidence in a case.
They won the case, but then they were accused by the loser of copyright infringement, "hacking" or a violation of the Computer Fraud and Abuse Act, and violating the DMCA by bypassing a robots.txt file.The case is Healthcare Advocates v. Harding, Earley Folley & Frailey et al. In its Second Amended Complaint [PDF], Healthcare Advocates alleged that the Harding firm violated their copyright rights in four specific ways: by unlawfully displaying archived screenshots and viewing the images returned by the Wayback Machine on their computers in their offices. Yes. For real. It's in the complaint, paragraph 79. The second copyright infringement, according to Healthcare was that the firm unlawfully reproduced the archived images by knowingly storing copies of the screenshots onto their computer hard drives. That turned out to be false in any case, because the paralegal temp that did the work didn't save anything to the hard drive. She only printed out whatever she found. The third alleged violation was that the firm unlawfully reproduced copyrighted images by printing paper copies of the archived screenshots off of their computers. And finally, paragraph 82 alleges that the firm unlawfully distributed copies of the screenshots to their co-counsel in the lawsuit it won. Oh, and they were accused of spoliating evidence, because they didn't preserve cache files. Poor Internet Archive got dragged into the litigation for a while, too. Can you believe this? Healthcare Advocates, the plaintiff, had set up a robots.txt file to block the public from viewing their old website pages, you see, but for some reason it didn't work for a few days, and so the defendant law firm was able to view and print out legacy pages from Wayback for a client in litigation with Healthcare. Their reward for this normal and simple act was a very persistent and complicated lawsuit.
Last month, the defendant law firm finally won a motion for summary judgment, dismissing all of the plaintiffs' claims, including the claims for copyright infringement. Here's the judge's memorandum and order [PDF]. I'll provide it as text also. Now there is more news about the case. The victorious defendant law firm has just asked the court to order the plaintiffs to pay its legal fees and costs. It's a whopping $161,461.50 for the former and $9,348.60 for the latter. You can read the memorandum of law [PDF] asking for the fees and costs to be reimbursed.
You probably do believe it, because it might remind you of SCO v. IBM, where IBM collected evidence from SCO's website, upon which SCO accused IBM of "hacking" and having unclean hands as a result, alleging a violation of that same Computer Fraud and Abuse Act. What is this, a trend? Attorney Jon Stanley explained that statute for us at the time.
Hopefully Healthcare will learn a valuable lesson, considering they may have to pay enough for the class. Let me tell you a little bit more about the case and how I see it interconnecting with Copiepresse v. Google regarding the robots.txt file aspect, as well as SCO v. IBM on the "hacking" allegation. I'm reproducing the docket for you, so you can follow this unbelievable saga, one that illustrates to me why some laws may need some adjustment to make sure something like this can never happen to anyone again. Here's what the judge wrote in Healthcare about the accusation of copyright infringement for viewing and copying web pages to use as evidence in litigation: The purpose behind printing the archived images was to make a record of what was viewed. The Harding firm copied these materials as supporting documentation for the defense they planned to raise for their clients against the allegations. It would be an absurd result if an attorney defending a client against charges of trademark and copyright infringement was not allowed to view and copy publicly available material, especially material that his client was alleged to have infringed. A beacon of common sense.
The memorandum also explains fair use in some detail, because that was one defense that the Harding law firm raised: Healthcare Advocates copyright protected its website to prevent competitors from gaining an advantage by being able to pilfer its promotional and marketing tools. ... The purpose of copyright protection generally is to stimulate creativity for the public good. G. Peter Albert Jr. and Laff, Whitesel & Saret, Ltd., Intellectual Property Law in Cyberspace, 207 (1999). "Because the ultimate goal of copyright law is to increase our fund of information, the fair use privilege is more extensive for works of information[.]" Marshall Leaffer, Understanding Copyright LawSony Corp. of Am., v. Univ. City Studios, Inc., 464 U.S. 417 (1984)). The nature of these works was predominately informational. This factor works in the Harding firm's favor as well in this fair use determination.
That is the part some folks seem to miss about copyright law -- that it provides protection to the owner but for a purpose -- to encourage more works are made available to the public. If you wish to lock your content up and not let anyone see it, you probably don't understand copyright law. And you probably also don't want to put it on the Internet at all.
I know. By now you are thinking, how stupid does this get? Without being able to certify the precise level, I think it is fair to say it gets worse. Look at the next claim that Healthcare made, namely that the law firm had a duty to retain cache files, so Healthcare could determine if they'd used them for any purpose other than the litigation. Since Harding didn't retain the cache files, Healthcare accused them of spoliating evidence.
Yup. Cache files. You see, the law firm's paralegal apparently just printed out each page she could find of the Healthcare website, but she didn't save anything to the hard drive. So the plaintiff alleged that the firm had failed to fulfill its duty to preserve evidence. On that basis, the plaintiff asked for a spoliation inference at trial. Who is this starting to remind you of? In some ways, this case is more disturbing to me, because I can't see what Healthcare was trying to get out of it, except maybe revenge. At least SCO wanted a settlement and some money. There's at least a logic there.
The judge explains the law on spoliation. Then he writes: A cache file is a temporary storage area where frequently accessed data can be stored for rapid access.... Some cache files are discarded after only twenty-four hours.... The facts show that the Harding firm made no effort to preserve these temporary files immediately after they used their web browsers.
Healthcare Advocates argues that this fact alone warrants imposition of a spoliation inference. It claims that the Harding firm knew immediately on July 9, 2003 and July 14, 2003, that they had a duty to preserve the cache files on their computers. In support of its assertion, Healthcare Advocates has offered the answer that the Harding firm provided in their response to an interrogatory. The Harding firm answered question 15 of the Plaintiff's First Set of Interrogatories by stating that the firm "became aware that information relating to the conduct of its representatives on July 9, 2003 and July 14, 2003 as alleged in the Complaint may be relevant to the underlying action immediately upon first observation of the downloaded documents from the www.archive.org website."....
Healthcare Advocates reads this answer to state that the Harding firm anticipated that they would be sued for violating a statute enacted to combat "hacking" when they accessed a public website via a web browser. Healthcare Advocates' inference that the Harding firm immediately knew that its actions in using a public website to obtain archived screenshots of another public website would open them up to liability under the DMCA is unreasonable. This answer shows that the Harding firm knew these archived images were relevant to the Underlying Litigation, and that they had a duty to preserve any copies they printed. What the Harding firm should have anticipated was that the images they copied would be relevant, which they did and saved accordingly.... The Harding firm had no reason to anticipate that using a public website to view images of another public website would subject them to a civil lawsuit containing allegations of hacking.
Healthcare Advocates further argues that since the Harding firm clearly knew that the cache files were relevant, they should have immediately removed the computers from further use for fear that these temporary files might be lost. Healthcare Advocates believes that the failure to take this measure simply "shocks the conscience."... As stated above, this Court has not seen any evidence showing that the Harding firm knew or should have known that a lawsuit under the DMCA was likely, or that the temporary cache files would be sought. Thus, the failure to immediately remove computers that the firm used everyday, when they had no reason to believe that their actions would subject them to a lawsuit for "hacking" is not an action that shocks the conscience.... Ultimately, the cache files were deleted from the Harding firm's computers. However, no evidence has been presented showing that the Harding firm was responsible for erasing them. The files were deleted automatically. Plaintiff's expert, Gideon Lenkey, stated at his deposition that cache files are handled automatically by the computer.... The cache files may have been emptied dozens of times before the request for production was made, which was well over three months after the Harding firm accessed the Wayback Machine. (See Pl's Mot. Summ. J. Ex. F, Edward Felton's Expert Report at 5 (noting that some cache files are discarded after only twenty-four hours).) The most important fact regarding the lost evidence is that the Harding firm did not affirmatively destroy the evidence.... Quite the contrary, the Harding firm actually provided Healthcare Advocates with forensic iimages of their computer's hard drives.... I do not think that any sanction is necessary here.
Do you believe this allegation could even be brought up? This poor law firm had to actually hire Ed Felton and other experts to explain to the judge that cache files are temporary and wouldn't be hanging around three months after an event on the Internet, most likely.
See what I meant the other day when I said that copyright law needs to be amended to reflect the new digital realities? If you can get sued for copyright infringement for looking at a public website, something needs a little tweak. And could somebody notice, please, that the Computer Fraud and Abuse Act is being misused, in my view, to try to make it apply to innocent people?
That reminds me. As I mentioned, the Harding firm was sued for copyright infringement also for giving a copy of the screenshots, on paper, to their co-counsel. Really. That probably explains a little dry humor at the deposition of Kevin Flynn, the plaintiff here, which you'll find in the docket listing as two exhibits to docket number 75. The Harding firm's lawyer asked a question, and Flynn's attorney asked if he didn't have a copy of the website contents to show the witness. No, says the Harding lawyer. "It might be copyright infringement."
He was, of course, mocking the other side, which had brought some rather extreme copyright infringement claims. It was so bad, the Harding lawyer would only show the printouts of the public website's pages to the judge in camera. I'd say it more strongly if I dared, but when folks bring a lawsuit like this one, one wants to watch what one says. I'd do the same if I were in conversation with a crazed psycho serial killer. It's a joke.
Sorta. Kinda. Anyway, I couldn't be pointing in any particular direction because the plaintiff didn't sue the Harding firm for showing a copy of the screenshot to the judge, who nevertheless took the time to tell the world in a footnote that any such claim would be a mistake anyway.
He concludes:
Ultimately, the facts show that the Harding firm's use of the archived screenshots constitutes a fair use under copyright law. Whew. So that's established. Fair use lives. It may be on life support, but here it just sat up and told the undertaker, "Hey, I'm still breathing!" You may think that's The End. But no. Next the judge had to address the DMCA claims. This is the interesting part for Google. You'll recall in that other copyright-is-so-sacred-we-must-shut-down-the-Internet-if-necessary lawsuit brought by Copiepresse, there was an unwillingness to rely on robots.txt on the flimsy ground that it's not a legal process, just a way of doing things by tradition.
Well, it's a legal thing now. Or it can be. The judge in this farcical lawsuit parsed it all out for us in excruciating detail. He starts out in a way that will make the hair on your necks stand up, I know, defining the law:
The DMCA makes it a violation of copyright law for a person to engage in activity commonly referred to as hacking when the object of that activity is to access copyrighted material that is protected by technological means.
Sigh. No. That is what is commonly known as cracking. Hacking is what Steve Wozniak did for Apple. It's when someone finds it really enjoyable and interesting to see what he can do with software. Think Linus. Or Stallman. The judge continues: The statute was enacted to address the problem of copyright infringement committed via the Internet. The statute states, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." 17 U.S.C. Section 1201(a)(1)(A)(2007). "[T]o 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner[.]".... "[A] technological measure 'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work."...
The measure at issue in this case is the robots.txt protocol. No court has found that a robots.txt file universally constitutes a "technological measure effectively controll[ing] access" under the DMCA. The protocol by itself is not analogous to digital password protection or encryption. However, in this case, when all systems involved in processing requests via the Wayback Machine are operating properly, the placement of a correct robots.txt file on Healthcare Advocates' current website does work to block users from accessing archived screenshots of its website.
... The only way to gain access would be for Healthcare Advocates to remove the robots.txt file from its website, and only the website owner can remove the robots.txt file. Thus, in this situation, the robots.txt file qualifies as a technological measure effectively controlling access to the archived copyrighted images of Healthcare Advocates. This finding should not be interpreted as a finding that a robots.txt file universally qualifies as a technological measure that controls access to copyrighted works under the DMCA.
That's the part that I was thinking Google might be able to present to Copiepresse, since robots.txt works identically with them as with Wayback Archive. But of course, some might point out that there isn't anything technological about robots.txt. But this judge parsed it out by logic. If the robots.txt file works, the public sees no page on Internet Archive, unless they hack in, because it actually is in there. He wasn't saying, as I read it, that a robots.txt file on your own website means if anyone looks at that page and copies it, it becomes a DMCA violation. But someone some time somewhere will probably claim something like that.
So how, you are wondering, did the Harding "hackers" .... joke joke... manage to view the Wayback Archive's pages on Healthcare? Their own expert explained that it was "due to a cache error caused by a database resource exhaustion condition and exacerbated by heavy use on that date."
You mean they got called hackers (meaning crackers) and sued under the DMCA because they asked Wayback for the pages, and Wayback presented them?
Yes.
See what's wrong with this law? Litigants don't always stick to just what is reasonable. They go for whatever the law allows, stretching as necessary to cover the facts at hand. It's something to think about next time you say, "There oughta be a law." Think of the most extreme, unpleasant and unreasonable litigant in the universe, and ask yourself, will this proposed law enable really bad outcomes? Could it be misused against innocent people?
Anyway, the judge logically concluded that since no "control" was affirmatively bypassed, and since both side's expert agreed there was no evidence of any "hack", there was no DMCA circumvention violation. You might think that the plaintiff could have figured that out himself after he read his expert report. Nope. The plaintiff argued that after the Harding firm saw one blocked page, they should have stopped trying to find others. It presented cases it claimed matched the heinous activities here in this case. The judge was not impressed. He mentions a case, I.M.S. Inquiry Mgmt. Sys., Ltd., v. Bershire Info. Sys., Inc., where a New York federal district court found that "the unauthorized use of a password did not constitute circumvention under the DMCA", because what the defendant avoided was "the permission to use the password, and that was not the situation the DMCA was written to address":
That court said that the DMCA deals with situations where the digital walls guarding copyrighted material are avoided.... That defendant did not avoid the wall, rather he simply stole the key and opened the door himself. Making requests to Wayback isn't circumvention. They didn't alter code or pick any lock or avoid or bypass any protection measure, because, the judge pointed out, "there was no lock to pick". The servers were malfunctioning, and so it was a lock-free moment. And they didn't steal anyone's password. "The Harding firm could not 'avoid' or 'bypass' a digital wall that was not there." Lack of permission isn't circumvention under the DMCA.
We are still not done. The plaintiff also accused the Harding firm of violating the Computer Fraud and Abuse Act. You'll recall that SCO has done the same with IBM.
In this case, the judge read the statute and noticed that you have to show a loss from the violation of $5,000 or more. Healthcare did so by counting the plaintiff's time spent figuring out what happened. He also tried to claim time spent in the law library studying about the law, but that can't count, the judge ruled, and neither do legal fees in the litigation. But figuring the plaintiff's time at $60-100 an hour, he met the requirement. So the judge had to slog through this claim too. So the question became did the Harding firm visiting Wayback and viewing Healthcare's website constitute exceeding its authorized access?
The statute doesn't define authorization, so the judge used the ordinary meaning, and so if a person obtains information from someone else's computer by intentional or unauthorized access, the statute applies. However, in this fact pattern, the judge ruled that the Harding firm wasn't responsible for the malfunctioning servers and they didn't view anything they were not entitled to see. When a robots.txt message showed, there was a message saying "search here for all pages" and so they did, or in other words they used Wayback in the manner it was intended to be used.
The plaintiff had argued that the judge should focus on the fact that the Harding firm was looking at pages that the copyright holder didn't want seen, so that makes it unauthorized. No, said the judge. That's irrelevant:
The statute only penalizes persons who exceed authorization. The Harding firm was given the power to view the images by the Wayback Machine....The Harding firm got lucky, because the servers were malfunctioning, but getting lucky is not equivalent to exceeding authorized access.
You have to do more than use the Internet in its intended manner to come under the CFAA, the judge concluded -- use a scraping tool when told not to, transmit a worm, something. That didn't happen here, so another count of the complaint bit the dust. What's left?
Common law conversion and trespass to chattels under state law, both of which the judge tossed out as being preempted by copyright law. And so, at last, the Harding "hackers" were exonerated. What a farce.
What do you bet the guy appeals?
Here's what he should do instead. Remove all his content from the Internet. Really. He needs to first learn a bit more about how it works. Then if he chooses to return, he should only put on the Internet what he wants people to see. Use robots.txt by all means, if you wish to block old pages or any pages from being included in Internet Archive and Google, but don't expect perfection from computers.
Or people either, now that I think of it. I've included in the docket listing the main filings. If you see one I didn't provide that you're crazy wild to read, let me know, and I'll get it for you. I will put the Judge's Order and Memorandum as text, below the docket.
********************************** 2:05-cv-03524-RK
HEALTHCARE ADVOCATES, INC. v. HARDING, EARLEY, FOLLMER & FRAILEY et al
ROBERT F. KELLY, presiding
Date filed: 07/08/2005
Date terminated: 07/20/2007
Date of last filing: 07/20/2007
History
Doc. No. |
Dates |
Description |
-- |
Filed: | 07/08/2005 |
Entered: | 07/11/2005 |
|
Summons Issued |
Docket Text: Summons Issued; 2 Mailed to counsel 7/11/05 as to INTERNET ARCHIVE, HARDING, EARLEY, FOLLMER & FRAILEY. (tj, )
|
-- |
Filed: | 07/08/2005 |
Entered: | 07/11/2005 |
|
Jury Demand |
Docket Text: DEMAND for Trial by Jury by HEALTHCARE ADVOCATES, INC. (tj, )
|
1 |
Filed: | 07/08/2005 |
Entered: | 07/11/2005 |
|
Complaint |
Docket Text: COMPLAINT against all defendants ( Filing fee $ 250 receipt number 918900.), filed by HEALTHCARE ADVOCATES, INC.(tj, )
|
2 |
Filed: | 07/08/2005 |
Entered: | 07/11/2005 |
|
Disclosure |
Docket Text: Disclosure by HEALTHCARE ADVOCATES, INC.(tj, )
|
3 |
Filed: | 07/08/2005 |
Entered: | 07/11/2005 |
|
Copy of Copyright Form |
Docket Text: Copy of Form to Register of Copyrights. (tj, )
|
4 |
Filed & Entered: | 08/08/2005 | |
Notice of Appearance |
Docket Text: Entry of Appearance by JEFFREY P. LEWIS on behalf of HARDING, EARLEY, FOLLMER & FRAILEY and Jury Demand, Certificate of Service. (ac, )
|
5 |
Filed & Entered: | 08/18/2005 | Terminated: | 10/04/2005 | |
Motion to Dismiss |
Docket Text: MOTION to Dismiss filed by HARDING, EARLEY, FOLLMER & FRAILEY.Memorandum and Certificate of Service. (Attachments: # (1) Exhibit A)(LEWIS, JEFFREY)
|
6 |
Filed & Entered: | 08/22/2005 | Terminated: | 10/04/2005 | |
Motion to Dismiss |
Docket Text: MOTION to Dismiss Plaintiff's Complaint filed by INTERNET ARCHIVE.Memorandum; Certificate of Service.(LANTIERI, PAUL)
|
7 |
Filed & Entered: | 08/22/2005 | |
Disclosure |
Docket Text: Disclosure with Certificate of Service by INTERNET ARCHIVE.(LANTIERI, PAUL)
|
8 |
Filed & Entered: | 08/29/2005 | |
Order |
Docket Text: ORDER THAT DEFENDANT, HARDING, EARLEY, FOLLMER & FRAILEY IS GRANTED A SEVEN DAY EXTENSION IN WHICH TO FILE A MOTION TO DISMISS PLAINTIFFS' COMPLAINT. SIGNED BY JUDGE ROBERT F. KELLY ON 08/29/05. 08/29/05 ENTERED AND COPIES MAILED AND FAXED.(ac, )
|
9 |
Filed & Entered: | 08/31/2005 | |
Application/Petition |
Docket Text: APPLICATION OF STEFANI E. SHANBERG, ESQ. TO PRACTICE IN THIS COURT BY INTERNET ARCHIVE, STATEMENT, CERTIFICATE OF SERVICE. (ac, )
|
10 |
Filed & Entered: | 08/31/2005 | |
Application/Petition |
Docket Text: APPLICATION OF SARAH PIEPEIER, ESQUIRE TO PRACTICE IN THIS COURT BY INTERNET ARCHIVE, STATEMENT, CERTIFICATE OF SERVICE. (ac, )
|
11 |
Filed & Entered: | 08/31/2005 | |
Application/Petition |
Docket Text: APPLICATION OF KENNETH B. WILSON, ESQUIRE TO PRACTICE IN THIS COURT BY INTERNET ARCHIVE, STATEMENT, CERTIFICATE OF SERVICE. (ac, )
|
12 |
Filed & Entered: | 08/31/2005 | |
Notice of Appearance |
Docket Text: NOTICE of Appearance by HARA K. JACOBS on behalf of INTERNET ARCHIVE with Certificate of Service (JACOBS, HARA)
|
13 |
Filed & Entered: | 09/06/2005 | |
Order |
Docket Text: ORDER THAT THE APPLICATION OF STEFANI E. SHANBERG, ESQUIRE TO PRACTICE IN THIS COURT IS GRANTED. SIGNED BY JUDGE ROBERT F. KELLY ON 09/06/05. 09/06/05 ENTERED AND COPIES MAILED AND FAXED.(ac, )
|
14 |
Filed & Entered: | 09/06/2005 | |
Order |
Docket Text: ORDER THAT THE APPLICATION OF SARAH PIEPMEIER, ESQUIRE TO PRACTICE IN THIS COURT IS GRANTED. SIGNED BY JUDGE ROBERT F. KELLY ON 09/06/05. 09/06/05 ENTERED AND COPIES MAILED AND FAXED.(ac, )
|
15 |
Filed & Entered: | 09/06/2005 | |
Order |
Docket Text: ORDER THAT THE APPLICATION OF KENNETH B. WILSON, ESQUIRE TO PRACTICE IN THIS COURT IS GRANTED. SIGNED BY JUDGE ROBERT F. KELLY ON 09/06/05. 09/06/05 ENTERED AND COPIES MAILED AND FAXED.(ac, )
|
16 |
Filed & Entered: | 09/06/2005 | |
Memorandum |
Docket Text: Memorandum of Law, In Opposition re [5] MOTION to Dismiss, [6] MOTION to Dismiss Plaintiff's Complaint filed by HEALTHCARE ADVOCATES, INC., Certificate of Service. (Attachments: # (1) Text of Proposed Order Denying Harding Motion# (2) Text of Proposed Order Denying I nternet Archive Motion)(BOYER, PETER) Modified on 9/9/2005 (np).
|
17 |
Filed & Entered: | 09/20/2005 | |
Application/Petition |
Docket Text: APPLICATION OF ESHA BANDYOPADHYAY, ESQUIRE TO PRACTICE IN THIS COURT BY INTERNET ARCHIVE, STATEMENT, CERTIFICATE OF SERVICE. (ac, )
|
18 |
Filed & Entered: | 09/21/2005 | |
Order |
Docket Text: ORDER THAT THE APPLICATION OF ESHA BANDYOPADHYAY, ESQUIRE TO PRACTICE IN THIS COURT IS GRANTED. SIGNED BY JUDGE ROBERT F. KELLY ON 09/21/05. 09/21/05 ENTERED AND COPIES MAILED AND FAXED.(ac, )
|
19 |
Filed: | 09/28/2005 |
Entered: | 09/29/2005 |
|
Application/Petition |
Docket Text: APPLICATION OF SCOTT S. CHRISTIE TO PRACTICE IN THIS COURT BY HEALTHCARE ADVOCATES, INC., STATEMENT, CERTIFICATE OF SERVICE.(ac, )
|
20 |
Filed & Entered: | 10/03/2005 | |
Order |
Docket Text: ORDER THAT THE APPLICATION OF SCOTT S. CHRISTIE, ESQUIRE TO PRACTICE IN THIS COURT ON BEHALF OF HEALTHCARE ADVOCATES, INC. IS GRANTED. SIGNED BY JUDGE ROBERT F. KELLY ON 10/03/05. 10/03/05 ENTERED AND COPIES MAILED AND FAXED.(ac, )
|
21 |
Filed & Entered: | 10/04/2005 | |
Order on Motion to Dismiss |
Docket Text: ORDER THAT THE MOTIONS TO DISMISS ARE GRANTED REGARDING COUNTS IV, VII,VIII,IX,X,XI AND XII DUE TO DEFICIENCIES IN THE PLEADINGS. THE MOTIONS TO DISMISS ARE DENIED IN ALL OTHER RESPECTS. IT IS FURTHER ORDERED THAT THE PLAINTIFF'S CROSS MOTION TO AMEND THE COMPLAINT IS GRANTED AND THE PLAINTIFF IS GRANTED LEAVE TO AMEND THE COMPLAINT TO REMEDY THE DEFICIENIES, ETC. SIGNED BY JUDGE ROBERT F. KELLY ON 10/04/05.10/04/05 ENTERED AND COPIES MAILED AND E-MAILED. (ac, ), E
|
22 |
Filed & Entered: | 11/09/2005 | |
Amended Document |
Docket Text: AMENDED DOCUMENT by HEALTHCARE ADVOCATES, INC. Amended Complaint (Attachments: # (1) Certificate of Service) (BOYER, PETER) (FILED IN ERROR BY ATTORNEY) Modified on 11/10/2005 (np).
|
23 |
Filed & Entered: | 11/29/2005 | Terminated: | 01/19/2006 | |
Motion to Dismiss |
Docket Text: MOTION to Dismiss Amended Complaint filed by INTERNET ARCHIVE.Memorandum,Proposed Order,Certificate of Service.(SHANBERG, STEFANI)
|
24 |
Filed & Entered: | 12/06/2005 | |
Answer to Complaint |
Docket Text: ANSWER to Amended Complaint by HARDING, EARLEY, FOLLMER & FRAILEY, Certificate of Service.(LEWIS, JEFFREY) Modified on 12/7/2005 (cdd, ).
|
25 |
Filed & Entered: | 12/13/2005 | |
Response in Opposition to Motion |
Docket Text: Memorandum of Law in Opposition re [23] MOTION to Dismiss Amended Complaint with Certificate of Service filed by HEALTHCARE ADVOCATES, INC.. (Attachments: # (1) Text of Proposed Order)(BOYER, PETER) Modified on 12/14/2005 (np).
|
26 |
Filed & Entered: | 01/19/2006 | |
Order on Motion to Dismiss |
Docket Text: ORDER THAT THE DEFENDANT INTERNET ARCHIVE'S MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT IS HEREBY DENIED. THE DEFENDANT INTERNET ARCHIVE SHALL FILE ITS ANSWER TO THE AMENDED COMPLAINT WITHIN FIFTEEN DAYS OF THE DATE OF THIS ORDER. SIGNED BY JUDGE ROBERT F. KELLY ON 01/19/06.01/19/06 ENTERED AND COPIES MAILED AND E-MAILED. (ac, )
|
27 |
Filed & Entered: | 02/01/2006 | Terminated: | 02/01/2006 | |
Motion for Extension of Time to File Answer |
Docket Text: Joint Stipulation for Extension of Time to File Answer (Stipulated) filed by INTERNET ARCHIVE.Certificate of Service.(LANTIERI, PAUL) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 2/2/2006 (np).
|
28 |
Filed: | 02/01/2006 |
Entered: | 02/02/2006 |
|
Order Setting Answer Deadline |
Docket Text: STIPULATION AND ORDER THAT DEFENDANT, INTERNET ARCHIVE HAS UNTIL FEBRUARY 17, 2006, TO FILE ITS ANSWER TO PLAINTIFF'S AMENDED COMPLAINT. SIGNED BY JUDGE ROBERT F. KELLY ON 02/01/06. 02/02/06 ENTERED AND COPIES MAILED AND FAXED.(ac, )
|
29 |
Filed: | 02/21/2006 |
Entered: | 02/22/2006 |
|
Order Setting Answer Deadline |
Docket Text: STIPULATION AND ORDER THAT DEFENDANT INTERNET ARCHIVE SHALL HAVE UNTIIL 3/3/2006 IN WHICH TO ANSWER PLAINTIFF'S COMPLAINT. SIGNED BY JUDGE ROBERT F. KELLY ON 2/21/06. 2/22/06 ENTERED AND COPIES MAILED AND FAXED. (jpd)
|
30 |
Filed: | 03/06/2006 |
Entered: | 03/07/2006 |
|
Order Setting Answer Deadline |
Docket Text: STIPULATION AND ORDER THAT INTERNET ARCHIVE HAS UNTIL MARCH 15, 2006, TO FILE ITS ANSWER TO PLAINTIFF'S AMENDED COMPLAINT. SIGNED BY JUDGE ROBERT F. KELLY ON 03/06/06. 03/07/06 ENTERED AND COPIES MAILED AND FAXED.(ac, )
|
31 |
Filed & Entered: | 03/15/2006 | |
Answer to Complaint |
Docket Text: Defendant Internet Archive's ANSWER to Complaint (Amended Complaint) by INTERNET ARCHIVE with Affirmative Defenses, Certificate of Service. (WILSON, KENNETH) Modified on 3/16/2006 (np).
|
32 |
Filed: | 03/27/2006 |
Entered: | 03/28/2006 |
|
Order |
Docket Text: SCHEDULING ORDER THAT FACT DISCOVERY SHALL BE COMPLETED ON OR BEFORE SEPTEMBER 27, 2006. PLAINTIFF MAY FREELY AMEND COMPLAINT TO ADD PARTIES OR CLAIMS UNTIL MAY 26, 2006. AFTER MAY 26, 2006, PLAINTIFF MAY ONLY AMEND UPON SHOWING OF GOOD CAUSE. ALL DISPOSITIVE MOTIONS SHALL BE FILED ON OR BEFORE DECEMBER 26, 2006. IF PARTIES DO NOT FILE ANY DISPOSITIVE MOTIONS, THE PARTIES' JOINT PRETRIAL ORDER SHALL BE FILED ON OR BEFORE JANUARY 9, 2007. IF DISPOSITIVE MOTIONS ARE FILED, THE PARTIES' JOINT PRETRIAL ORDER SHALL BE FILED WITHIN FOURTEEN DAYS AFTER THE COURT'S DISPOSITION OF THE DISPOSITIVE MOTIONS . SIGNED BY JUDGE ROBERT F. KELLY ON 03/27/06. 03/28/06 ENTERED AND COPIES E-MAILED. COPIES MAILED BY CHAMBERS 03/27/06.(ac, )
|
33 |
Filed & Entered: | 04/18/2006 | |
Disclosure |
Docket Text: Disclosure with Initial Disclosures of Defendant Harding, Earley, follmer & Frailey Pursuant to F.R.C.P. 26(a)(1), Certificate of Service by HARDING, EARLEY, FOLLMER & FRAILEY.(LEWIS, JEFFREY)
|
34 |
Filed: | 04/21/2006 |
Entered: | 04/24/2006 |
|
Application/Petition |
Docket Text: APPLICATION OF LILA I. BAILEY, ESQUIRE TO PRACTICE IN THIS COURT BY INTERNET ARCHIVE, STATEMENT, CERTIFICATE OF SERVICE. (ac, )
|
35 |
Filed: | 04/21/2006 |
Entered: | 04/24/2006 |
|
Application/Petition |
Docket Text: APPLICATION OF MICHAEL H. RUBIN, ESQUIRE TO PRACTICE IN THIS COURT BY INTERNET ARCHIVE, STATEMENT, CERTIFICATE OF SERVICE. (ac, )
|
36 |
Filed & Entered: | 04/26/2006 | |
Order |
Docket Text: ORDER THAT THE APPLICATION OF LILA I. BAILEY, ESQUIRE TO PRACTICE IN THIS COURT ON BEHALF OF INTERNET ARCHIVE IS GRANTED. SIGNED BY JUDGE ROBERT F. KELLY ON 04/26/06. 04/26/06 ENTERED AND COPIES MAILED AND FAXED.(ac, )
|
37 |
Filed & Entered: | 04/26/2006 | |
Order |
Docket Text: ORDER THAT THE APPLICATION OT MICHAEL H. RUBIN, ESQUIRE TO PRACTICE IN THIS COURT ON BEHALF OF INTERNET ARCHIVE IS GRANTED. SIGNED BY JUDGE ROBERT F. KELLY ON 04/26/06. 04/26/06 ENTERED AND COPIES MAILED AND FAXED.(ac, )
|
38 |
Filed & Entered: | 05/11/2006 | Terminated: | 05/24/2006 | |
Motion for Extension of Time to Amend |
Docket Text: First MOTION for Extension of Time to Amend Complaint to Join Additional Parties filed by HEALTHCARE ADVOCATES, INC... (Attachments: # (1) Text of Proposed Order)(BOYER, PETER)
|
39 |
Filed & Entered: | 05/23/2006 | |
Response in Opposition to Motion |
Docket Text: Memorandum of Law in Support of DEFENDANT'S Opposition to HEALTHCARE ADVOCATES' [38] MOTION for Extension of Time to Freely Amend the Amended Complaint filed by INTERNET ARCHIVE, Certificate of Service. (RUBIN, MICHAEL) Modified on 5/25/2006 (fh, ).
|
40 |
Filed & Entered: | 05/24/2006 | |
Order on Motion for Extension of Time to Amend |
Docket Text: ORDER THAT PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME TO AMEND THE AMENDED COMPLAINT IS DENIED. SIGNED BY JUDGE ROBERT F. KELLY ON 05/24/06.05/24/06 ENTERED AND COPIES MAILED AND E-MAILED. (ac, )
|
41 |
Filed & Entered: | 05/26/2006 | |
Amended Document |
Docket Text: AMENDED DOCUMENT by HEALTHCARE ADVOCATES, INC.. Second Amended Complaint. (Attachments: # (1) Exhibit A)(BOYER, PETER) **(FILED IN ERROR BY ATTY., STIPULATION FORWARDED TO CLERK/JUDGE FOR APPROVAL)** Modified on 5/30/2006 (fh)
|
42 |
Filed: | 05/30/2006 |
Entered: | 05/31/2006 |
|
Amended Complaint |
Docket Text: SECOND AMENDED COMPLAINT AGAINST INTERNET ARCHIVE, HARDING, EARLEY, FOLLMER & FRAILEY, JOHN DOES 1-10, JOHN DOES 11-20, JOHN DOES 21-30 FILED BY HEALTHCARE ADVOCATES, INC., JURY DEMAND, CERTIFICATE OF SERVICE.(ac, ) Additional attachment(s) added on 6/7/2006 (ac, ).
|
43 |
Filed & Entered: | 06/12/2006 | |
Answer to Amended Complaint |
Docket Text: Defendant Internet Archive's Answer to Plaintiff's Second Amended Complaint ANSWER to Amended Complaint by INTERNET ARCHIVE.(WILSON, KENNETH)[ Exhibit A]
|
44 |
Filed & Entered: | 06/21/2006 | |
Protective Order |
Docket Text: STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER WITH COURT APPROVAL. SIGNED BY JUDGE ROBERT F. KELLY ON 6/20/06. 6/21/06 ENTERED AND COPIES MAILED.(kw, )
|
45 |
Filed & Entered: | 07/17/2006 | |
Notice of Change of Address |
Docket Text: NOTICE of Change of Address by KENNETH B. WILSON (WILSON, KENNETH)
|
46 |
Filed & Entered: | 08/31/2006 | |
Stipulation of Dismissal |
Docket Text: STIPULATION of Dismissal And Order by HEALTHCARE ADVOCATES, INC.. (MOODY, CANDACE) Additional attachment(s) added on 9/5/2006 (ac, ).
|
47 |
Filed & Entered: | 09/01/2006 | |
Answer to Complaint |
Docket Text: Answer and Affirmative Defenses ANSWER to Complaint (Second Amended) by HARDING, EARLEY, FOLLMER & FRAILEY, Certificate of Service. (LEWIS, JEFFREY) Modified on 9/5/2006 (np).
|
48 |
Filed & Entered: | 09/06/2006 | |
Stipulation and Order |
Docket Text: STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE AS TO DEFENDANT INTERNET ARCHIVE. SIGNED BY JUDGE ROBERT F. KELLY ON 09/05/06. 09/06/06 ENTERED AND COPIES MAILED AND FAXED.(ac, ) (Entered: 09/06/2006)
|
49 |
Filed & Entered: | 09/27/2006 | Terminated: | 10/27/2006 | |
Motion to Compel |
Docket Text: First MOTION to Compel Discovery filed by HEALTHCARE ADVOCATES, INC..Proposed Order.(BOYER, PETER)
|
50 |
Filed & Entered: | 09/28/2006 | Terminated: | 09/28/2006 | |
Motion to Compel |
Docket Text: Exhibits RE: First MOTION to Compel Discovery filed by HEALTHCARE ADVOCATES, INC..Exhibits to Motion to Compel. (Attachments: # (1) Exhibit A # (2) Exhibit B# (3) Exhibit C# (4) Exhibit D# (5) Exhibit E# (6) Exhibit F# (7) Exhibit G# (8) Exhibit H# (9) Exhibit I# (10) Exhibit J# (11) Exhibit K# (12) Exhibit L# (13) Exhibit M# (14) Exhibit N# (15) Exhibit O) (BOYER, PETER) Modified on 10/2/2006 (np).
|
51 |
Filed & Entered: | 10/11/2006 | Terminated: | 10/11/2006 | |
Motion to Compel |
Docket Text: Response to Plaintiff's to MOTION to Compel filed by HARDING, EARLEY, FOLLMER & FRAILEY, Brief and Certificate of Service. ( Attachments: # (1)) (LEWIS, JEFFREY) Modified on 10/12/2006 (np).
|
52 |
Filed & Entered: | 10/27/2006 | |
Motion Hearing |
Docket Text: Minute Entry for proceedings held before Judge ROBERT F. KELLY : Motion Hearing held on 10/27/06 re [49] First MOTION to Compel Discovery filed by HEALTHCARE ADVOCATES, INC., Court Reporter: T. Garrity. Counsel address the Court. Counsel argured Motion and discussed Points of Law. Matter taken under advisement. (le, )
|
53 |
Filed & Entered: | 10/27/2006 | |
Order on Motion to Compel |
Docket Text: ORDER THAT DEFENDANT HARDING, EARLY, FOLLMER & FRAILEY PRODUCE IN RESPONSE TO DOCUMENT PRODUCTION REQUEST NO.14 ALL RELEVANT AND NON-PRIVILEGED DOCUMENTS AND A PRIVILEGE LOG FOR ALL COMPUTER FILES PREVIOUSLY IDENTIFIED BY ITS COMPUTER FORENSIC EXPERT ON THE FIRM'S COMPUTER HARD DRIVES SUBMITTED FOR ANALYSIS AND REVIEW THAT CONTAIN THE KEY WORDS "HEALTHCAREADVOCATES", "FLYNN" AND "ARCHIVE.ORG". SIGNED BY JUDGE ROBERT F. KELLY ON 10/27/06.10/27/06 ENTERED AND COPIES MAILED, E-MAILED. (fdc)
|
54 |
Filed & Entered: | 12/14/2006 | Terminated: | 12/15/2006 | |
Motion for Extension of Time to Complete Discovery |
Docket Text: Consent MOTION for Extension of Time to Complete Discovery filed by HEALTHCARE ADVOCATES, INC...(BOYER, PETER)
|
55 |
Filed & Entered: | 12/15/2006 | |
Order |
Docket Text: ORDER THAT THE SCHEDULING ORDER OF MARCH 27, 2006 IS AMENDED. ALL DISPOSITIVE MOTIONS SHALL BE FILED ON OR BEFORE FEBRUARY 26, 2007. THE PARTIES' JOINT PRETRIAL ORDER SHALL BE FILED WIHTIN FOURTEEN DAYS AFTER THE COURT'S DISPOSITION OF THE DISPOSITIVE MOTIONS. SIGNED BY JUDGE ROBERT F. KELLY ON 12/15/06. 12/15/06 ENTERED AND COPIES MAILED AND FAXED.(ac, )
|
56 |
Filed & Entered: | 02/26/2007 | Terminated: | 07/20/2007 | |
Motion for Summary Judgment |
Docket Text: MOTION FOR SUMMARY JUDGMENT FILED BY HARDING, EARLEY, FOLLMER & FRAILEY, JOHN F.A. EARLEY,III, CHARLES L. RIDDLE, FRANK J. BONINI, JR., AND KIMBER TITUS. (FILED UNDER SEAL).(ac, ) Modified on 2/26/2007 (ac, ).
|
57 |
Filed & Entered: | 02/26/2007 | Terminated: | 07/20/2007 | |
Motion to Strike |
Docket Text: MOTION TO STRIKE THE "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" DESIGNATION FROM THE SETTLEMENT AGREEMENT REACHED BETWEEN PLAINTIFF, HEALTHCARE ADVOCATES, INC., AND DEFENDANT, INTERNET ARCHIVE FILED BY JOHN F.A. EARLEY, CHARLES L. RIDDLE, FRANK J. BONINI, JR, KIMBER TITUS, HARDING, EARLEY, FOLLMER & FRAILEY. (FILED UNDER SEAL).(ac, )
|
58 |
Filed & Entered: | 02/26/2007 | Terminated: | 07/20/2007 | |
Motion for Partial Summary Judgment |
Docket Text: MOTION for Partial Summary Judgment filed by HEALTHCARE ADVOCATES, INC...(BOYER, PETER)
|
59 |
Filed & Entered: | 02/26/2007 | Terminated: | 02/26/2007 | |
Motion for Partial Summary Judgment |
Docket Text: Memorandum of Law in Support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment filed by HEALTHCARE ADVOCATES, INC., DECLARATION. (Attachments: # (1) Affidavit Declaration of Kevin Flynn in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (2) Exhibit Exhibit A to Declaration of Kevin Flynn in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (3) Affidavit Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (4) Exhibit Exhibit A to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (5) Exhibit Exhibit A - part 2 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (6) Exhibit Exhibit A - part 3 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (7) Exhibit Exhibit B - part 1 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (8) Exhibit Exhibit B - part 2 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (9) Exhibit Exhibit B - part 3 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (10) Exhibit Exhibit B - part 4 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (11) Exhibit Exhibit C - part 1 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (12) Exhibit Exhibit C - part 2 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (13) Exhibit Exhibit C - part 3 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (14) Exhibit Exhibit D - part 1 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (15) Exhibit Exhibit D - part 2 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (16) Exhibit Exhibit E - part 1 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (17) Exhibit Exhibit E - part 2 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (18) Exhibit Exhibit F - part 1 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (19) Exhibit Exhibit F - part 2 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (20) Exhibit Exhibit G - part 1 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (21) Exhibit Exhibit G - part 2 - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (22) Exhibit Exhibit H and Exhibit I - REDACTED - FILED UNDER SEAL - to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (23) Exhibit Exhibit J and Exhibit K to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (24) Exhibit Exhibit L, Exhibit M and Exhibit N to Declaration of Scott S. Christie in support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment# (25) Text of Proposed Order proposed order regarding Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment)(BOYER, PETER) Modified on 2/27/2007 (afm, ).
|
60 |
Filed & Entered: | 02/26/2007 | |
Statement |
Docket Text: Statement of Undisputed Material Facts in Support of Motion for Summary Judgment by HEALTHCARE ADVOCATES, INC.. (BOYER, PETER)
|
61 |
Filed & Entered: | 02/26/2007 | |
Declaration |
Docket Text: CERTIFICATE OF SERVICE re [58] MOTION for Partial Summary Judgment, [59] Memorandum of Law in Support of Plaintiff Healthcare Advocates, Inc.'s Motion for Partial Summary Judgment by HEALTHCARE ADVOCATES, INC.. (BOYER, PETER) Modified on 2/27/2007 (afm, ).
|
62 |
Filed & Entered: | 02/27/2007 | |
Declaration |
Docket Text: Declaration of Scott S. Christie, Esquire in Support of Motion for Summary Judgment by HEALTHCARE ADVOCATES, INC. with Exhibits Attached. (ac, )
|
63 |
Filed & Entered: | 02/27/2007 | |
Exhibit |
Docket Text: EXHIBITS H AND I TO THE DECLARATION OF SCOTT S. CHRISTIE, ESQUIRE BY HEALTHCARE ADVOCATES, INC. (FILED UNDER SEAL)(ac, )
|
64 |
Filed & Entered: | 03/05/2007 | |
Stipulation |
Docket Text: STIPULATION Letter to Hon Robert F. Kelly with proposed Stipulation for Extension of Time to file responses to pending motions by HEALTHCARE ADVOCATES, INC.. (Attachments: # (1) Exhibit Proposed Stipulation for Extension of Time)(BOYER, PETER) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 3/6/2007 (np).
|
65 |
Filed & Entered: | 03/06/2007 | |
Stipulation and Order |
Docket Text: STIPULATION AND ORDER THAT EACH PARTY MUST RESPOND TO THE OTHER PARTIES MOTION(S) BY MARCH 28, 2007. SIGNED BY JUDGE ROBERT F. KELLY ON 03/06/07. 03/06/07 ENTERED AND COPIES MAILED AND FAXED.(ac, ) Additional attachment(s) added on 5/24/2007 (nda, ).
|
-- |
Filed: | 03/26/2007 |
Entered: | 03/27/2007 |
|
Set Deadlines/Hearings |
Docket Text: MOTIONS DUE BY 4/18/2007. (ac, )
|
66 |
Filed & Entered: | 03/26/2007 | Terminated: | 03/26/2007 | |
Motion for Extension of Time to File Response/Reply |
Docket Text: Consent Stipulation for Extension of Time to File Response/Reply as to [57] MOTION to Strike, [56] MOTION for Summary Judgment, [58] MOTION for Partial Summary Judgment filed by HEALTHCARE ADVOCATES, INC. (BOYER, PETER) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 3/27/2007 (np).
|
67 |
Filed: | 03/26/2007 |
Entered: | 03/27/2007 |
|
Stipulation and Order |
Docket Text: STIPULATION AND ORDER THAT THE DATE BY WHICH INTERNET ARCHIVE MUST FILE ITS MOTION OPPOSING THE REDESIGNATION OF THE SETTLMENT AGREEMENT AND EACH PARTY MUST RESPOND TO THE OTHER PARTY'S MOTION SHOULD BE EXTENDED SUCH THAT ALL RESPONSES ARE DUE BY APRIL 18, 2007. SIGNED BY JUDGE ROBERT F. KELLY ON 03/26/07. 03/27/07 ENTERED AND COPIES MAILED AND FAXED.(ac, ) Additional attachment(s) added on 6/1/2007 (le, ).
|
68 |
Filed & Entered: | 04/18/2007 | |
Memorandum |
Docket Text: Memorandum of Law in Opposition Plaintiff's Motion for Partial Summary Judgment filed by JOHN F.A. EARLEY, CHARLES L. RIDDLE, FRANK J. BONINI, JR, KIMBER TITUS, HARDING, EARLEY, FOLLMER & FRAILEY, Certificate of Service (FILED UNDER SEAL) (ac, )
|
69 |
Filed & Entered: | 04/18/2007 | |
Response |
Docket Text: Response to Plaintiff's Statement of Uncontested Facts by JOHN F.A. EARLEY, CHARLES L. RIDDLE, FRANK J. BONINI, JR, KIMBER TITUS, HARDING, EARLEY, FOLLMER & FRAILEY, Certificate of Service. (FILED UNDER SEAL) (ac, )
|
70 |
Filed & Entered: | 04/18/2007 | |
Response in Opposition to Motion |
Docket Text: RESPONSE in Opposition re [56] MOTION for Summary Judgment filed by HEALTHCARE ADVOCATES, INC., DECLARATION. (Attachments: # (1) Affidavit Declaration of Scott S. Christie in support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment# (2) Exhibit A - Highly Confidential - Redacted - to Christie Declaration in support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment# (3) Exhibit B to Christie Declaration in support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment# (4) Exhibit C to Christie Decl. in support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment# (5) Exhibit D to Christie Decl. in support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment# (6) Affidavit Certification of Service regarding Plaintiff's Opposition to Defendants' Motion for Summary Judgment)(BOYER, PETER) Modified on 4/20/2007 (afm, ).
|
71 |
Filed & Entered: | 04/18/2007 | |
Response in Opposition to Motion |
Docket Text: LETTER RESPONSE in Opposition re [57] MOTION to Strike "Highly Confidential-Attorneys' Eyes Only" Designation from the Confidential Settlement Agreement reached between Plaintiff, Healthcare Advocates, Inc. and Defendant Internet Archive filed by HEALTHCARE ADVOCATES, INC.. (BOYER, PETER) Modified on 4/20/2007 (afm, ).
|
72 |
Filed: | 04/18/2007 |
Entered: | 04/19/2007 |
Terminated: | 07/19/2007 | |
Motion for Protective Order |
Docket Text: NON-PARTY MOTION FOR PROTECTIVE ORDER AND OPPOSITION TO DEFENDANT'S MOTION TO STRIKE, AND THE DECLARATION OF MICHAEL H. RUBIN FILED BY INTERNET ARCHIVE. (FILED UNDER SEAL).(ac, )
|
73 |
Filed & Entered: | 04/19/2007 | |
Notice of Withdrawal of Appearance |
Docket Text: NOTICE of Withdrawal of Appearance by JOSHUA H. ROBERTS on behalf of INTERNET ARCHIVE(ROBERTS, JOSHUA)
|
74 |
Filed & Entered: | 04/19/2007 | |
Declaration |
Docket Text: Declaration of Scott S. Christie with Exhibits Attached. (EXHIBIT A FILED UNDER SEAL)(ac, )
|
75 |
Filed & Entered: | 04/24/2007 | |
Declaration |
Docket Text: Declaration re [58] MOTION for Partial Summary Judgment Declaration of Scott S. Christie with corrected exhibits by HEALTHCARE ADVOCATES, INC.. (Attachments: # (1) Exhibit A - part 1 - to Declaration of Scott S. Christie with corrected exhibits ("Christie Decl. with corrected exhibits")# (2) Exhibit A - part 2 - to Christie Decl. with corrected exhibits# (3) Exhibit A - part 3 - to Christie Decl. with corrected exhibits# (4) Exhibit B - part 1 - to Christie Decl. with corrected exhibits# (5) Exhibit B - part 2 - to Christie Decl. with corrected exhibits# (6) Exhibit B - part 3 - to Christie Decl. with corrected exhibits# (7) Exhibit B - part 4 - to Christie Decl. with corrected exhibits# (8) Exhibit C - part 1 - to Christie Decl. with corrected exhibits# (9) Exhibit C - part 2 - to Christie Decl. with corrected exhibits# (10) Exhibit C - part 3 - to Christie Decl. with corrected exhibits# (11) Exhibit C - part 4 - to Christie Decl. with corrected exhibits# (12) Exhibit C - part 5 - to Christie Decl. with corrected exhibits# (13) Exhibit C - part 6 - to Christie Decl. with corrected exhibits# (14) Exhibit D - part 1 - to Christie Decl. with corrected exhibits# (15) Exhibit D - part 2 - to Christie Decl. with corrected exhibits# (16) Exhibit E - part 1 - to Christie Decl. with corrected exhibits# (17) Exhibit E - part 2 - to Christie Decl. with corrected exhibits# (18) Exhibit F - part 1 - to Christie Decl. with corrected exhibits# (19) Exhibit F - part 2 - to Christie Decl. with corrected exhibits# (20) Exhibit F - part 3 - to Christie Decl. with corrected exhibits# (21) Exhibit G - part 1 - to Christie Decl. with corrected exhibits# (22) Exhibit G - part 2 - to Christie Decl. with corrected exhibits# (23) Exhibit H and I to Christie Decl. to corrected exhibits# (24) Exhibit Exhibits J and K to Christie Decl. with corrected exhibits# (25) Exhibit L, M, and N to Christie Decl. with corrected exhibits# (26) Affidavit Certification of Service regarding Christie Decl. with corrected exhibits)(BOYER, PETER)
|
76 |
Filed & Entered: | 04/25/2007 | |
Declaration |
Docket Text: Redacted Declaration of Scott S. Christie by HEALTHCARE ADVOCATES, INC., Certificate of Service with Exhibits A through L Attached. (EXHIBITS H AND I FILED UNDER SEAL) (ac, )
|
77 |
Filed & Entered: | 05/21/2007 | |
Declaration |
Docket Text: Declaration re [56] MOTION for Summary Judgment, [58] MOTION for Partial Summary Judgment of Mary E. MacDonald, Esq. by HEALTHCARE ADVOCATES, INC.. (BOYER, PETER)
|
78 |
Filed & Entered: | 07/20/2007 | |
Memorandum & Opinion |
Docket Text: MEMORANDUM AND ORDER THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IS GRANDT AND PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT IS DENIED.. SIGNED BY JUDGE ROBERT F. KELLY ON 7/20/2007. 7/20/2007 ENTERED AND COPIES MAILED, E-MAILED AND FAXED.(ap, )
|
79 |
Filed & Entered: | 07/20/2007 | |
Order |
Docket Text: ORDER IN ACCORDANCE WITH THE COURT'S MEMORANDUM & ORDER, IT IS ORDERED THAT JUDGMENT BE AND THE SAME IS HEREBY ENTERED IN FAVOR OF THE DEFENDANTS' AND AGAINST THE PLAINTIFF.. SIGNED BY JUDGE ROBERT F. KELLY ON 7/20/2007. 7/20/2007 ENTERED AND COPIES MAILED AND E-MAILED.(ap, )
|
80 |
Filed & Entered: | 08/03/2007 | |
Motion for Attorney Fees |
Docket Text: MOTION for Attorney Fees filed by HARDING, EARLEY, FOLLMER & FRAILEY.Memorandum of Law and Certificate of Service. (Attachments: # (1) Exhibit A & B)(LEWIS, JEFFREY)
|
81 |
Filed & Entered: | 08/14/2007 | Terminated: | 08/14/2007 | |
Motion for Extension of Time to File Response/Reply |
Docket Text: STIPULATION for Extension of Time to File Response/Reply as to [80] MOTION for Attorney Fees filed by HEALTHCARE ADVOCATES, INC..Stipulation.(BOYER, PETER) Modified on 8/15/2007 (afm, ). (FILED IN ERROR BY ATTORNEY, FORWARDED TO JUDGE FOR APPROVAL)
|
82 |
Filed & Entered: | 08/16/2007 | |
Stipulation and Order |
Docket Text: STIPULATION AND ORDER THAT HEALTHCARE ADVOCATES' DEADLINE TO RESPOND TO DEFENDANTS' MOTION FOR ATTORNEYS' FEES AND COSTS SHOULD BE EXTENDED BY TWO WEEKS UNTIL AUGUST 31, 2007. SIGNED BY JUDGE ROBERT F. KELLY ON 08/16/07. 08/16/07 ENTERED AND COPIES MAILED AND E-MAILED.(ac, ) |
********************************************************
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
HEALTHCARE ADVOCATES, INC.,
Plaintiff,
v.
HARDING, EARLEY, FOLLMER &
FRAILEY, et. al.,
Defendants.
____________________________________
CIVIL ACTION
No. 05-3524
MEMORANDUM
ROBERT F. KELLY, Sr. J. JULY 20, 2007
____________________________________
Presently before this Court is the Motion for Summary Judgment filed by Defendant
Harding, Earley, Follmer & Frailey, John F.A. Earley III, Charles L. Riddle, Frank J. Bonini Jr.,
and Kimber Titus (collectively the "Harding firm"). Also before this Court is the Motion for
Partial Summary Judgment filed by Plaintiff Healthcare Advocates, Inc. For the following
reasons, Defendants' Motion for Summary Judgment is granted, and Plaintiff's Motion for
Partial Summary Judgment is denied.
I. BACKGROUND
Healthcare Advocates is a patient advocacy organization that assists its members in their
dealings with health care providers. The Harding firm is a boutique law firm located in suburban
Philadelphia that focuses its practice on intellectual property law. Healthcare Advocates was the
plaintiff in a lawsuit filed in June of 2003 by its founder and president Kevin Flynn in which he
alleged that a competitor of the company infringed trademarks and misappropriated trade secrets
belonging to Healthcare Advocates. The Harding firm represented the defendants in that lawsuit,
1
an action which was dismissed by this Court on summary judgment. Flynn v. Health Advocate,
Inc., 2005 WL 288989, No. 03-3764 (E.D. Pa. Feb. 8, 2005) (hereinafter the "Underlying
Litigation").
The present civil action arises out of events that occurred in the pre-discovery phase of
the Underlying Litigation. The facts of this case are relatively simple. Healthcare Advocates
commenced the Underlying Litigation by filing a complaint on June 23, 2003. After receiving
the complaint, the Harding firm began investigating the facts behind the allegations contained
therein. The investigation led the Harding firm to search on the Internet for information about
Healthcare Advocates. On July 9, 2003, and July 14, 2003, employees of the Harding firm
accessed a website operated by the Internet Archive (www.archive.org), and viewed archived
screenshots1 of Healthcare Advocates' website (www.healthcareadvocates.com) via a tool
contained on Internet Archive's website called the Wayback Machine. The Wayback Machine
allowed the Harding firm to see what Healthcare Advocates' public website looked like prior to
the date the complaint was filed in the Underlying Litigation.
Viewing the content that Healthcare Advocates had included on its public website in the
past was very useful to the Harding firm in assessing the merits of the trademark infringement
and trade secret misappropriation claims brought against their clients. The Harding firm also
printed copies of each archived screenshot of Healthcare Advocates' public website that they
viewed via the Wayback Machine. The images were used during the course of the Underlying
Litigation. The Harding firm did not actively save any of the screenshots they viewed onto their
2
computer hard drives.
In this civil action, Healthcare Advocates alleges that the Harding firm's use of the
Wayback Machine to obtain archived screenshots constituted "hacking." While the word
hacking is not defined in the Complaint, Healthcare Advocates claims that the Harding firm
manipulated the Wayback Machine on July 9, 2003, and July 14, 2003, in a way that rendered
useless a protective measure that it had employed on its website. The protective measure at issue
was a robots.txt file. Healthcare Advocates placed this file on its website as a means of
preventing the public from accessing archived screenshots of www.healthcareadvocates.com that
were present on Internet Archives' database. Healthcare Advocates believes that the robots.txt
file acted like a digital padlock. Since the Harding firm did not have the "key," Healthcare
Advocates argues that they could only have obtained these protected images by breaking the
robots.txt "lock."
By way of background, the Internet Archive is a nonprofit organization that has created
an online library of digital media in an effort to preserve digital content for future reference. Its
digital database is equivalent to a paper library, but is filled with digital media like websites
instead of books. The library includes a collection of chronological records of various websites
which Internet Archive makes available at no cost to the public via the Wayback Machine. The
library's records include more than 85 billion screenshots of web pages which are stored on a
computer database in California. Internet Archive's database provides users with the ability to
study websites that may have been changed or no longer exist.
The chronological records are compiled by routinely taking screenshots of websites as
they exist on various days. Internet Archive collects images through a process called crawling.
3
A crawler or robot is an automated program that scours the Internet and takes pictures of every
web page that it is instructed to visit. The most widely recognized use of screenshots is for
indexing by search engines. Through indexing, search engines such as Google create lists of
websites. These lists allow the search engine to provide faster searches, because the sites are all
cataloged in the search engine's memory which negates the need to access the web to compile
search results. A crawler provides the new screenshots Internet Archive uses to complete its
chronologies.
Any person with a web browser can search Internet Archive's database of archived
images. Searching the database is accomplished via the Wayback Machine, which Internet
Archive provides on its website. The Wayback Machine is an information retrieval system that
allows the user to request archived screenshots of web pages that may be contained on the
database, and it is easy to use. First, a person logs onto Internet Archive's website located at
www.archive.org, where the user will see a box in the middle of the homepage bearing the title
"Wayback Machine." In the box there is a small input field. The user enters the web address of
the desired site into the input field, following the http:// prompt, and hits the "Take Me Back"
button found directly below to initiate a search of Internet Archive's database.
If screenshots matching the user's web address request are available, a list of the dates on
which images were taken is displayed on the user's computer screen in vertical columns grouped
by year. Clicking on a particular date retrieves the screenshots of the website archived for that
specific date. The image appears in the user's web browser just like a live website would appear,
however, the user is not viewing a live website. Instead, the user sees the static version of the
website that is stored in Internet Archive's database. The Wayback Machine only provides a
4
window into the past where users can see what a website looked like on a specific date.
The creators of the archives seek only to include publicly available websites in their
library. Websites that require passwords for access are neither included nor crawled. Website
owners who do not want their sites preserved in the database can request to be excluded. Internet
Archives has an exclusion policy in place that accommodates these requests, i.e. the robots.txt
protocol.
The robots.txt file would not control access to Healthcare Advocate's website, it only
controlled the information that was available once the website was accessed.
Internet Archive's adherence to the robots exclusion protocol provided two benefits to
website owners in practice. First, for those websites that did not have a robots.txt file present at
the website's inception, but included it later, Internet Archive would remove the public's ability
to access any already archived screenshots stored in its database. The archived images were not
deleted, but were instead rendered inaccessible to the general public. Second, the crawler
employed by Internet Archive would be instructed not to gather screenshots of that website in the
future. Those were the terms of the exclusion policy in effect when Healthcare Advocates placed
a robots.txt file on its website.
Healthcare Advocates had not included a robots.txt file on its website prior to July 7,
2003. Consequently, Internet Archive's database included screenshots of Healthcare Advocates'
website. Kevin Flynn, president of the company, remembered first placing a robots.txt file on the
website on either July 7, 2003, or July 8, 2003. He is unsure of the exact date. Once the file was
included, Mr. Flynn expected that the public would be denied access to any archived images of
Healthcare Advocates' website stored in Internet Archive's database in accord with the exclusion
5
policy. Normally, the public would have been denied access. However, on the dates in question
Internet Archive's servers malfunctioned, and provided Healthcare Advocates archived images to
those who requested them.
The images were blocked through an automated process. When requests were made via
the Wayback Machine, the servers automatically checked to see if a robots.txt file existed on the
website which was the origination of the archived images being requested. If a robots.txt file was
present, then the Wayback Machine would return a message stating that the archived images
were blocked by the website owner via a robots.txt file. Internet Archive blocked the archived
screenshots on an all or nothing basis. If a website owner blocked any portion of his website,
then public access was denied for all web pages contained in the database. But, when the
Harding firm used the Wayback Machine on July 9, 2003, and July 14, 2003, the servers which
checked for robots.txt files and blocked the images were malfunctioning. Internet Archive's
servers did not respect the robots.txt file on Healthcare Advocates' live website. Thus, the
Harding firm was able to view and print copies of archived screenshots of Healthcare Advocates'
website stored in Internet Archive's database.
Plaintiffs' expert, Gideon Lenkey, has testified that the Harding firm was able to view
archived screenshots of Healthcare Advocates' website because the servers at Internet Archive
were not respecting robots.txt files. Mr. Lenkey also testified that the Harding firm did not
engage in "hacking." Kimber Titus and Charles Riddle, two of the individuals who used the
Wayback Machine, for the Harding firm, testified that they followed the procedure outlined
above in conducting their searches. However, Healthcare Advocates does not believe that the
Harding firm followed the standard practice used to search archived screenshots via the Wayback
6
Machine. Healthcare Advocates claims that the Harding firm circumvented the protective
measure it had in place.
Circumventing an electronic protective measure violates federal law. Thus, Healthcare
Advocates brought this Civil action against the Harding firm, Internet Archive, and various John
Does. The Complaint was filed on July 8, 2005 and contained thirteen counts. Seven of those
claims were dismissed by Order of this Court on October 4, 2005. Healthcare Advocates filed a
Second Amended Complaint on May 30, 2006, composed of thirteen counts against the Harding
firm and Internet Archive. Internet Archive was dismissed by stipulation on August 31, 2006,
and with it counts VIII through XIII. Healthcare Advocates has voluntarily dismissed counts IV
and VII. All remaining claims, counts I, II, III, V, and VI, are addressed in this Memorandum.
Count I of Healthcare Advocates' Second Amended Complaint alleges a violation of the
Digital Millennium Copyright Act ("DMCA") which prohibits the circumvention of protective
measures that restrict access to copyrighted works. In count II, Healthcare Advocates alleges that
the Harding firm infringed on its copyright rights by viewing and printing copies of the archived
images of the Healthcare Advocates' web pages, by unknowingly saving copies of these web
pages in temporary files known as caches, and by distributing the images to their co-counsel in
the Underlying Litigation. Count III states a claim against the Harding firm for violating the
Computer Fraud and Abuse Act ("CFAA") by intentionally exceeding their access and obtaining
information from protected computers used in interstate commerce. Counts V and VI are for
conversion and trespass to chattels under Pennsylvania's common law.
This Civil action is presently before this Court on the Motion for Summary Judgment of
the Harding firm on all five claims, and the Motion for Partial Summary Judgment of Healthcare
7
Advocates on only the DMCA and CFAA claims.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c) states that summary judgment is proper "if there is
no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a
matter of law." See also Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991). The
Court must ask "whether the evidence presents a sufficient disagreement to require submission to
the jury or whether . . . one party must prevail as a matter of law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the
court of the basis for the motion and identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Summary judgment must be granted "against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. The non-moving party
must go beyond the allegations set forth in its pleadings and counter with evidence showing that
there is a genuine factual dispute requiring a trial. Fed. R. Civ. P. 56(e); see Big Apple BMW,
Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1362-63 (3d Cir. 1992). A genuine factual dispute
exists when "a reasonable jury could return a verdict in favor of the non-moving party." Embrico
v. U.S. Steel Corp., 404 F. Supp. 2d 802, 817 (E.D. Pa. 2005). When a party fails to establish an
element of their case, summary judgment must be granted. Celotex, 477 U.S. at 322.
III. DISCUSSION
A. Copyright Infringement
A person commits copyright infringement by violating one or more of the exclusive rights
8
of the copyright owner as enumerated in 17 U.S.C. § 106 (2007).2 Infringement occurs when a
person reproduces, adapts, distributes, publicly performs or publicly displays a work protected by
the Copyright Act in an unprivileged way. These exclusive rights of copyright holders are
codified in statute at § 106 of the Copyright Act, and they delineate the boundary between
copyright infringement and non-infringing use. In the event that infringement has occurred, an
infringer may be excused from liability under the doctrine of fair use. Determining whether fair
use applies in an infringement case is a mixed question of law and fact that this Court may
decide. Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 560 (1985).
Fair use is a judicially created defense to a claim for copyright infringement. Congress
codified this common law defense in the Copyright Act of 1976. 17 U.S.C. § 107.3 Under the
9
doctrine, a court must consider four factors in making a determination that the defendant is
entitled to a defense of fair use for his infringing activity. Those factors are: (1) the purpose and
character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of
the portion used, and (4) the effect of the use upon the potential market for or value of the
copyrighted work. This doctrine is relevant as the Harding firm has offered it as a complete
defense to their actions.
Healthcare Advocates alleges that its exclusive rights of display, reproduction, and
distribution were violated when the Harding firm viewed and printed copies of archived images
of its copyright protected web pages via the Wayback Machine. The Harding firm maintains that
its use of these screenshots was allowed under fair use. In the Complaint, Healthcare Advocates
alleges that the Harding firm violated their copyright rights in four specific ways. (2d Am.
Compl. ¶ 79-82.) Paragraph 79 alleges that employees of the Harding firm unlawfully displayed
archived screenshots of Healthcare Advocates' website by viewing the images returned by the
Wayback Machine on their computers in their offices. In paragraph 80, Healthcare Advocates
alleges that the Harding firm unlawfully reproduced the archived images by knowingly storing
10
copies of the screenshots onto their computer hard drives. Paragraph 81 states that the Harding
firm unlawfully reproduced copyrighted images by printing paper copies of the archived
screenshots off of their computers. Finally, paragraph 82 alleges that the Harding firm
unlawfully distributed copies of the screenshots to their co-counsel in the Underlying Litigation.
A copyright holder must show two things to establish a case of infringement: (1) he must
demonstrate ownership of a valid copyright, and (2) he must show that the defendant has copied,
displayed, or distributed protected elements of the copyrighted work. William A. Graham Co. v.
Haughey, 430 F. Supp. 2d 458, 465 (E.D. Pa. 2006); see Whelan Assoc., Inc., v. Jaslow Dental
Lab., Inc., 797 F.2d 1222, 1231 (3d Cir. 1986); see also G. Peter Albert, Jr. and Laff, Whitesel &
Saret, Ltd., Intellectual Property Law in Cyberspace 247 (1999). Regarding the first element,
Healthcare Advocates attached to the Complaint copies of the registration forms submitted to the
Copyright Office. These forms are prima facie evidence of copyright ownership. Thus,
Healthcare Advocates has established the first element of the test. See Television Digest, Inc. v.
U.S. Tel. Ass'n, 841 F. Supp 5, 8 (D.D.C. 1993). The second elements, whether Defendants
have displayed, reproduced, or distributed the copyrighted material, and whether the defense of
fair use applies, will be discussed individually below.
Public display of a copyrighted work is a right reserved to the copyright owner. 17
U.S.C. § 106(5). The concept of display is defined rather broadly under the statute. "To
`display' a work means to show a copy of it, either directly or by means of a film, slide,
television image, or any other device or process[.]" 17 U.S.C. § 101. Displaying a work publicly
means to "display it at a place open to the public or at any place where a substantial number of
persons outside of a normal circle of a family and its social acquaintances is gathered[.]" Id The
11
facts show that Defendants Riddle and Titus accessed archived screenshots of Healthcare
Advocates' website via the Wayback Machine, and the images were displayed on their
computers. (Pl's Mot. Partial Summ. J. Ex. D, Riddle Dep. at 117; Ex. E, Titus Dep. at 68-78.)
Under the expansive definition of public display, the display of copyrighted images on computers
in an office constitutes a public display. See On Command Video Corp. v. Columbia Pictures
Indus., 777 F. Supp. 787 (N.D. Cal. 1991). Thus, Healthcare Advocates has satisfied the second
element of the infringement test.
The next question is whether the Harding firm's infringement of Healthcare Advocates'
right of public display is permissible under the fair use doctrine. Recent case law dealing with
the right of display shows that claims of this nature frequently arise in conjunction with claims
where other exclusive rights are also implicated. Healthcare Advocates's claims are no different.
It alleged that the Harding firm's activity infringed on both its rights of public display and
reproduction. The facts related to these rights are similar, and the discussion of the applicability
of the fair use doctrine will addresses the same points. Therefore, in the interest of judicial
economy, I will discuss these two infringement claims together in my analysis of the fair use
doctrine's applicability in this case.
A copyright holder also has the exclusive right of reproduction in his copyrighted work.
17 U.S.C. § 106(1). This is regarded as the most fundamental of the copyright rights available to
a copyright holder. See Marshall Leaffer, Understanding Copyright Law 290 (3d ed. 1999). A
copy is defined in the Copyright Act as "a material object . . . in which a work is fixed by any
method now known or later developed, and from which the work can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. §
12
101. Kimber Titus, a paralegal at the Harding firm, stated at her deposition that paper copies
were made of each copyrighted image she viewed through the Wayback Machine. (Pl's Mot.
Partial Summ. J. Ex. E, Titus Dep. at 80). Healthcare Advocates' right of reproduction was
infringed, and Healthcare Advocates has satisfied the test's second element.
The next question is whether printing exact copies of these archived images for use in
litigation is an infringing activity that should be excused under the doctrine of fair use. As stated
above, these claims will be analyzed under fair use together. The doctrine of fair use requires
this Court to consider four factors. The first factor is the purpose and character of the infringing
use. 17 U.S.C. § 107(1) This inquiry focuses on whether the use is commercial or educational.
Id Commercial use is less favored than educational use, but use by a commercial enterprise will
not preclude the applicability of fair use. See Assoc. Of Am. Colleges v. Mikaelian, 571 F.
Supp. 144, 152 (E.D. Pa. 1983).
The Harding firm makes a living by charging clients for defending their rights in court.
Consequently, the practice of law can be characterized as a profit making venture as Healthcare
Advocates argues, but "the commercial or nonprofit educational purpose of a work is only one
element of the first factor enquiry[.]" Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584
(1994). "If, indeed, commerciality carried presumptive force against a finding of fairness, the
presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of
§ 107, including news reporting, comment, criticism, teaching, scholarship, and research, since
these activities `are generally conducted for profit in this country.'" Id Therefore, I must
consider more than the fact that law firms operate for profit in this analysis.
The Harding firm's purpose in viewing and printing copies of the archived images of
13
Healthcare Advocates' website was primarily to defend their clients. The Harding firm viewed
these archived web pages to assess the merit of the claims brought against their client. They
hoped they might discover facts allowing them to refute the allegations. Charles Riddle stated in
his deposition that he used the Wayback Machine to find out what the complaint was talking
about, as he was unsure of the alleged infringement from the face of the complaint. (Def. Mot.
Summ J. Ex. I, Mohr Dep. at 118.) Healthcare Advocates did not specify what had been
infringed, nor did it attach any documents to the complaint in the Underlying Litigation showing
infringement. The Harding firm viewed the documents on their computers because that was the
method by which the Wayback Machine worked. Recent case law on public display in the
Internet era is relevant to this Civil action. In the cases below, website owners infringed display
rights by making copyrighted work, usually pictures, of another available for the public to view
on their websites without the consent of the owners. The infringers also usually charged a fee.
See On Command Video Corp., 777 F. Supp. at 787-91; Playboy Enters., Inc. v. Frena, 839 F.
Supp. 1552 (M.D. Fla. 1993); Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006)
(affirmed in part, reversed in part at Perfect 10, Inc., v. Amazon.com, Inc., 2007 U.S. App.
LEXIS 11420). Users of the infringers' websites were able to view and sometimes save the
copyrighted images on their own computers.
The Harding firm did not use the copyrighted images in a manner similar to the infringers
in the above cases. The Harding firm did not make these images available to others on any
website. They viewed them in their offices. Those cases do not address the situation here. In
this civil action, only other members of the firm were able to see the images on the computer
screens in the Harding firm's offices. While other members of the Harding firm were able to see
14
the images, the Harding firm did not purposefully display them to others. The public display was
a result of the Harding firm viewing the images in their offices. Only a small group of additional
employees were able to see these images. This group is similar to a family circle and its
acquaintances. The statute says that public display is a showing to a group outside this family
circle or acquaintances. 17 U.S.C. § 101. The Harding firm's conduct is not similar to the
situations where courts have found that individuals were liable for infringing the right of public
display.
The purpose behind printing the archived images was to make a record of what was
viewed. The Harding firm copied these materials as supporting documentation for the defense
they planned to raise for their clients against the allegations. It would be an absurd result if an
attorney defending a client against charges of trademark and copyright infringement was not
allowed to view and copy publicly available material, especially material that his client was
alleged to have infringed.4The Harding firm also recognized that the material was relevant to the
case as soon as they saw the archived images, and they saved hard copies of the images
accordingly. (Pl's Mot. Partial Summ. J. Ex. B, Bonini Dep. at 231.) The Harding firm viewed
and copied the archived images of a public website in an attempt to defend their client against a
charge of copyright infringement. The purpose of the Harding firm's infringing activity militates
in favor of a finding of fair use in this case.
The second factor that I must consider is the nature of the copyrighted work. 17 U.S.C. §
15
107(2). One of the more important things here is the fact that the Harding firm obtained and
copied information originally made publicly available. Healthcare Advocates' website was used
in a marketing capacity for the company. It informed the public about the services Healthcare
Advocates provided. (Pl's Mot. Partial Summ. J. Ex. A, Flynn Dep. at 30.) The website was
primarily a marketing tool, and Kevin Flynn, president of the company, stated that the original
purpose of the website was advertising. (Id) The website included contact information,
descriptions of the services provided, testimonials from satisfied users, answers to frequently
asked questions, and cost of the service. See Healthcare Advocates' website available at
http://www.healthcareadvocates.com (last visited July 2, 2007).
Healthcare Advocates copyright protected its website to prevent competitors from gaining
an advantage by being able to pilfer its promotional and marketing tools. (Pl's Mot. Partial
Summ. J. Ex. A, Flynn Dep. at 170.) The purpose of copyright protection generally is to
stimulate creativity for the public good. G. Peter Albert Jr. and Laff, Whitesel & Saret, Ltd.,
Intellectual Property Law in Cyberspace, 207 (1999). "Because the ultimate goal of copyright
law is to increase our fund of information, the fair use privilege is more extensive for works of
information[.]" Marshall Leaffer, Understanding Copyright Law 436 (3d ed. 1999) (citing Sony
Corp. of Am., v. Univ. City Studios, Inc., 464 U.S. 417 (1984)). The nature of these works was
predominately informational. This factor works in the Harding firm's favor as well in this fair
use determination.
The third factor that must be considered is the amount and substantiality of the portion of
the copyrighted work used. 17 U.S.C. § 107(3). There is no disagreement that the Harding firm
viewed and copied in their entirety all of archived web pages they viewed through the Wayback
16
Machine. The question is whether the Harding firm copied more than was necessary and
justifiable under the fair use doctrine. See Marshall Leaffer, Understanding Copyright Law 438
(3d ed. 1999) ("excessive copying not commensurate with the purpose of the use loses the
privilege of fair use."). This is not a quantitative determination, but rather a qualitative one. See
Harper & Row Publishers, Inc., 471 U.S. at 564-65. The fact that a party copies only a little of a
work is not dispositive. In the Harper & Row case, the infringer copied a very small portion, 300
words, of an unreleased 200,000 word novel in a magazine article. The courts found that while
the portion copied was small in comparison to the majority of the work, the copied portion was
the heart of the work. That fact worked against a finding of fair use.
Thus, even though the Harding firm copied everything, I must assess the import of their
actions in so doing. It was necessary for them to copy everything they viewed because they were
using these screenshots to defend their clients against copyright and trademark infringement
claims. The defense was that the material infringed was information posted on the company's
public website. The Harding firm was justified in viewing and printing as many versions of the
website as necessary to show that the material had been made public. More importantly, as
discussed below, the material was relevant evidence in the Underlying Litigation, and the firm
had a duty to preserve relevant evidence. They fulfilled that duty by printing copies. Therefore,
the substantiality of the portion used does not militate against a finding of fair use.
Finally, I must consider the effect of the Harding firm's use upon the potential market for
or value of the copyrighted work. 17 U.S.C. § 107(4). As Kevin Flynn stated, these copyrighted
webpages were used as advertising and marketing tools by Healthcare Advocates. They have
value in the sense that they may be effective tools that help generate new customers and maintain
17
existing ones. This value was not affected by the Harding firm's use. The screenshots were used
only in a lawsuit. The Harding firm is not a competitor of Healthcare Advocates, and the firm
has no use for the marketing and advertising strategies employed by players in the patient
advocacy business. The Harding firm did not seek to gain a competitive advantage.
Most importantly, the images viewed and copied were archived versions of Healthcare
Advocates' website which the company no longer utilizes, suggesting their worth is negligible.
Similarly, these archived web pages were once available for the world to view on Healthcare
Advocates website. Copies of the images may exist all over the world. The impact of the
Harding firm's viewing and copying on the value of this copyrighted material is negligible.
Analysis of this forth element militates in favor of a finding of fair use. The analysis of all four
factors shows that a finding of fair use by the Harding firm is warranted. Thus, this Court holds
that the Harding firm's infringing use is excusable under the doctrine of fair use.
Healthcare Advocates also claims that the Harding firm infringed its right of reproduction
when they impermissibly saved copies of the archived screenshots onto their computer hard
drives. However, Plaintiff has presented no evidence showing that the Harding firm purposely
saved these images. Instead, Healthcare Advocates argues that the images were involuntarily
saved in temporary files on the Harding firm's computers. Thus, the firm's duty to preserve
extended to these temporary files. Since the files are lost, Plaintiff alleges that the Harding firm
failed to fulfill their duty to preserve. Healthcare Advocates believes that if these temporary
cache files had been preserved, they would have been able to determine if the Harding firm used
the archived images for any purpose other than what has been alleged or admitted. Healthcare
Advocates believes it is prejudiced without this evidence, and thinks the loss of these temporary
18
files entitles it to a spoilation inference at trial.
A party to litigation has an obligation to preserve relevant evidence. "While a litigant is
under no duty to keep or retain every document in its possession . . . it is under a duty to preserve
what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to
lead to the discovery of admissible evidence, is reasonably likely to be requested during
discovery and/or is the subject of a pending discovery request." Zubulake v. UBS Warburg LLC,
220 F.R.D. 212, 217 (S.D.N.Y. 2003).
A spoilation inference is an "evidentiary rationale [that] is nothing more than the
common sense observation that a party who has notice that [evidence] is relevant to litigation and
who proceeds to destroy [evidence] is more likely to have been threatened by [that evidence] than
is a party in the same position who does not destroy the [evidence]." Schmid v. Milwaukee Elec.
Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994). In the Schmid case, the Third Circuit set forth its
balancing test for evaluating whether sanctions are appropriate when evidence is lost. The
considerations are: (1) the degree of fault of the party who altered or destroyed the evidence, (2)
the degree of prejudice suffered by the opposing party, and (3) whether there is a lesser sanction
that will avoid substantial unfairness to the opposing party and where the offending party is
seriously at fault, will serve to deter such conduct by others in the future. Id at 79.
The first question that must be addressed is what degree of fault must be attributed to the
Harding firm for this failure to preserve temporary files. A cache file is a temporary storage area
where frequently accessed data can be stored for rapid access. When a computer accesses a web
page, it will sometimes store a copy of the web page in its cache in case the page is needed again.
(Pl's Mot. Summ. J. Ex. F, Expert Report of Edward Felton at 5.) Some cache files are discarded
19
after only twenty-four hours. (Id at 6.) When the Harding firm viewed archived screenshots of
Healthcare Advocates' website through the Wayback Machine, copies of the screenshots may
have been automatically stored in the cache files of the Harding firm's computers. The facts
show that the Harding firm made no effort to preserve these temporary files immediately after
they used their web browsers.
Healthcare Advocates argues that this fact alone warrants imposition of a spoilation
inference. It claims that the Harding firm knew immediately on July 9, 2003, and July 14, 2003,
that they had a duty to preserve the cache files on their computers. In support of its assertion,
Healthcare Advocates has offered the answer that the Harding firm provided in their response to
an interrogatory. The Harding firm answered question 15 of the Plaintiff's First Set of
Interrogatories by stating that the firm "became aware that information relating to the conduct of
its representatives on July 9, 2003 and July 14, 2003 as alleged in the Complaint may be relevant
to the underlying action immediately upon first observation of the downloaded documents from
the www.archive.org website."5(Pl's Mot. Partial Summ. J. Ex. C.)
Healthcare Advocates reads this answer to state that the Harding firm anticipated that
they would be sued for violating a statute enacted to combat "hacking" when they accessed a
public website via a web browser. Healthcare Advocates' inference that the Harding firm
immediately knew that its actions in using a public website to obtain archived screenshots of
another public website would open them up to liability under the DMCA is unreasonable. This
20
answer shows that the Harding firm knew these archived images were relevant to the Underlying
Litigation, and that they had a duty to preserve any copies they printed. What the Harding firm
should have anticipated was that the images they copied would be relevant, which they did and
saved accordingly. (See generally Pl's Mot. Partial Summ. J. Ex. B, Bonini Dep. at 250-51.)
The Harding firm had no reason to anticipate that using a public website to view images of
another public website would subject them to a civil lawsuit containing allegations of hacking.
Healthcare Advocates further argues that since the Harding firm clearly knew that the
cache files were relevant, they should have immediately removed the computers from further use
for fear that these temporary files might be lost. Healthcare Advocates believes that the failure to
take this measure simply "shocks the conscience." (Pl's Br. Mot. Partial Summ. J. at 23.) As
stated above, this Court has not seen any evidence showing that the Harding firm knew or should
have known that a lawsuit under the DMCA was likely, or that temporary cache files would be
sought. Thus, the failure to immediately remove computers that the firm used everyday, when
they had no reason to believe that their actions would subject them to a lawsuit for "hacking," is
not an action that shocks the conscience.
Alternatively, Healthcare Advocates states that even it the Harding firm was not
immediately aware of their duty, they were informed of the need to preserve these temporary files
in the letter sent by Healthcare Advocates's counsel in the Underlying Litigation on October 24,
2003. (Pl's Mot. Partial Summ. J. Ex. B, letter from Halberstadt.) Mr. Halberstadt's letter,
accompanied by a subpoena, informed the Harding firm that Healthcare Advocates sought
production of their computers and the copies of the archived screenshots that were made. Mr.
Halberstadt stated that he believed the firm's actions in obtaining the images might have violated
21
Pennsylvania's laws. He requested that nothing be deleted or altered on the Harding firm's
computers, and all copies of the requested documents be preserved. (Id) Mr. Halberstadt's letter
said nothing about preserving the temporary cache files on these computers. The Harding firm
read this request as asking them to preserve the copies of the screenshots they viewed through the
Wayback Machine, which they preserved. (Pl's Mot. Partial Summ. J. Ex. C, Earley Dep. at 205,
217.) The Harding firm did not think that there was anything to preserve on their computers, as
they had not saved the screenshots to their hard drives. (Pl's Mot. Partial Summ. J. Ex. B,
Bonini Dep. at 245.)
Ultimately, the cache files were deleted from the Harding firm's computers. However, no
evidence has been presented showing that the Harding firm was responsible for erasing them.
The files were deleted automatically. Plaintiff's expert, Gideon Lenkey, stated at his deposition
that cache files are handled automatically by the computer. (Pl's Mot. Partial Summ. J. Ex. G,
Lenkey Dep. at 106.) The cache files may have been emptied dozens of times before the request
for production was made, which was well over three months after the Harding firm accessed the
Wayback Machine. (See Pl's Mot. Summ. J. Ex. F, Edward Felton's Expert Report at 5 (noting
that some cache files are discarded after only twenty-four hours).) The most important fact
regarding the lost evidence is that the Harding firm did not affirmatively destroy the evidence.
Cf. Zubulake, 220 F.R.D. at 220-21 (company continued to destroy backup tapes even after these
tapes were specifically requested by plaintiff). Quite the contrary, the Harding firm actually
provided Healthcare Advocates with forensic images of their computer's hard drives. (Pl's Mot.
Partial Summ. J. Ex. D, Riddle Dep. at 223.) Very little fault can be attributed to the Harding
firm for the loss of these temporary cache files.
22
Regarding the second consideration, Healthcare Advocates has not suffered significant
prejudice from not being able to look at these temporary files. Healthcare Advocates claims that
its investigation was stunted by the absence of these temporary cache files. It bases this assertion
on its expert Gideon Lenkey who noted in his deposition that, "You cannot have enough data in
analysis." (Pl's Mot. Partial Summ. J. Ex. G, Lenkey Dep. at 55.) However, Mr. Lenkey stated
in the same paragraph that even without a perfect evidentiary situation he was able to piece
together what occurred from the data available. He stated that, "we got there in the end, it just
took time." (Id) It appears that Healthcare Advocates suffered very little prejudice due to the
lost evidence.
The third consideration addresses the ability of lesser sanctions to remedy the situation, I
do not think that any sanction is necessary here. Healthcare Advocates was able to obtain the
information that it needed through the forensic images of the Harding firm's computer hard
drives. (Id) The Harding firm did not purposefully destroy evidence. To impose a sanction on
the Harding firm for not preserving temporary files that were not requested, and might have been
lost the second another website was visited, does not seem to be a proper situation for an adverse
spoilation inference. Healthcare Advocates's request for an adverse inference in regard to the
cache files is denied. Since Healthcare Advocates has presented no evidence on the issue of
whether the Harding firm infringed its right of reproduction in regard to involuntarily saved
archived images in cache files, the Harding firm is granted summary judgement on this claim.
Healthcare Advocates' final copyright claim alleges that the Harding firm distributed the
copies it made of the archived images to co-counsel in the Underlying Litigation. No evidence
has been presented showing that any distribution occurred. The attorneys who worked on the
23
case all stated in their depositions that they did not provide copies of the archived images to co-
counsel in the Underlying Litigation. (Def's Mot. Summ J. Ex. G, Earley Dep. at 202; Ex. H,
Bonini Dep. at 219; Ex. I, Riddle Dep. at 201.) Copies of the screenshots were presented to this
Court in camera, but Plaintiff did not include this act in its allegations.6Healthcare Advocates
has not come forth with any evidence showing that the Harding firm provided copies to co-
counsel in the Underlying Litigation. The Harding firm is therefore granted summary judgment
on this infringement claim.
In summation, Healthcare Advocates has presented deposition testimony that shows that
the Harding firm viewed the archived screenshots of Healthcare Advocates' website on their
computers. The facts also demonstrate that the Harding firm printed out paper copies of the
images they viewed. However, the evidence does not show that employees of the Harding firm
saved the archived images onto their computer hard drives, nor has Healthcare Advocates
presented evidence showing that it would be entitled to an adverse inference instruction at trial.
Finally, no evidence has been presented showing that the Harding firm distributed the printed
copies to their co-counsel in the Underlying Litigation. Ultimately, the facts show that the
Harding firm's use of the archived screenshots constitutes a fair use under copyright law. As
such, the Harding firm must be granted summary judgment on count II of Healthcare Advocates'
Second Amended Complaint.
24
B. Digital Millennium Copyright Act
The DMCA makes it a violation of copyright law for a person to engage in activity
commonly referred to as hacking when the object of that activity is to access copyrighted
material that is protected by technological means. The statute was enacted to address the
problem of copyright infringement committed via the Internet. The statute states, "No person
shall circumvent a technological measure that effectively controls access to a work protected
under this title." 17 U.S.C. § 1201(a)(1)(A) (2007). "[T]o `circumvent a technological measure'
means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid,
bypass, remove, deactivate, or impair a technological measure, without the authority of the
copyright owner[.]" 17 U.S.C. § 1201(a)(3(A). "[A] technological measure `effectively controls
access to a work' if the measure, in the ordinary course of its operation, requires the application
of information, or a process or a treatment, with the authority of the copyright owner, to gain
access to the work." 17 U.S.C. § 1201(a)(3(B).
The measure at issue in this case is the robots.txt protocol. No court has found that a
robots.txt file universally constitutes a "technological measure effectively controll[ing] access"
under the DMCA. The protocol by itself is not analogous to digital password protection or
encryption. However, in this case, when all systems involved in processing requests via the
Wayback Machine are operating properly, the placement of a correct robots.txt file on Healthcare
Advocates' current website does work to block users from accessing archived screenshots of its
website. (Pl's Mot. Partial Summ. J. Ex. F, Expert Report of Edward Felton at 10). The only
way to gain access would be for Healthcare Advocates to remove the robots.txt file from its
website, and only the website owner can remove the robots.txt file. Thus, in this situation, the
25
robots.txt file qualifies as a technological measure effectively controlling access to the archived
copyrighted images of Healthcare Advocates. This finding should not be interpreted as a finding
that a robots.txt file universally qualifies as a technological measure that controls access to
copyrighted works under the DMCA.
The material facts in this case are not in dispute. On the dates in question, the servers at
Internet Archive were malfunctioning due to a cache exhaustion condition. (Pl's Mot. Partial
Summ. J. Ex. G, Lenkey Dep. at 45.) Requests made via the Wayback Machine for images that
should have been blocked were instead filled. The Harding firm was able to view these images
only because of this server error. Plaintiff's expert Gideon Lenkey and Defendants' expert
Edward Felton have both testified, and written in their reports, that the employees of the Harding
firm did not circumvent the protective measure utilized by Healthcare Advocates.
Gideon Lenkey wrote in his report that Internet Archive experienced a problem with its
computer servers resulting in a malfunction which allowed users to access archived screenshots
that should have been blocked. He wrote:
According to IA [the access granted to the Harding firm] was due to a cache error
caused by a database resource exhaustion condition and exacerbated by heavy use
on that date. This condition caused the affected servers in the cluster to forget that
it had a copy of the HCA robots.txt file. Because the file was not present in the
cache [,] the [Internet Archive] servers, by design and in an effort to protect the
rights and privacy of the archived content's owners, would attempt to determine if
the queried site had a robots.txt file in place. On some occasions and for reasons
unknown these two servers would determine that robots.txt file did not exist on
the HCA site and on those occasions would deliver the protected content. The
requesting user would then be viewing specifically prohibited content without
authorization from HCA or IA.
(Pl's Mot. Partial Summ. J. Ex. G, Report of Gideon Lenkey at 6.)
In his deposition testimony, Mr. Lenkey reiterated the conclusions he stated in his report.
26
He said that two of the servers which processed Wayback Machine requests at Internet Archive
were malfunctioning. (Pl's Mot. Partial Summ. J. Ex. G, Lenkey Dep. at 45.) "What would
happen is [the server] would sort of forget about protective controls once it hit this condition."
(Id) Most importantly, Mr. Lenkey stated that he "found no evidence of a hack, meaning - - and
by definition, where someone created a tool to go out and, with malicious intent, use that tool
against a target." (Id at 46.) Mr. Lenkey said that the Harding firm accessed the Internet
Archive's website with only an ordinary web browser, they did not employ any special tools. (Id
at 61.) Mr. Lenkey also stated that the Harding firm had absolutely no part in creating the
exhaustion condition in Internet Archive's servers. (Id at 48-49).
Edward Felton presented similar findings on how the Harding firm gained access to the
archived screenshots of Healthcare Advocates' website. In his report, Mr. Felton also stated that
the Defendants did not engage in "hacking." (Pl's Mot. Partial Summ. J. Ex. F, Expert Report of
Edward Felton at ¶ 43.) He testified that he used the term hacking in his report to mean activity
that is devious and out of the ordinary. (Pl's Mot. Partial Summ. J. Ex. F, Felton Dep. at 133.)
He also noted that the Harding firm's "role was simple to request files by the usual means, and
to receive them." (Pl's Mot. Partial Summ. J. Ex. F, Expert Report of Edward Felton at ¶ 48.)
The experts agree that the Harding firm made requests via the Wayback Machine, and those
requests were filled only because Internet Archive's servers malfunctioned. The facts show that
the robots.txt file utilized by Healthcare Advocates had no effect when the Harding firm
requested the archived screenshots that were returned.
As there is no dispute concerning the material facts, the issue before this Court is whether
this evidence shows that the Harding firm circumvented the robots.txt file present on Healthcare
27
Advocates' website. My interpretation of the statute starts with the plain meaning of the words
used. The DMCA states that circumvention means to descramble, decrypt, avoid, bypass,
remove, deactiviate, or impair a technological measure. 17 U.S.C. § 1201(a)(3)(A). Healthcare
Advocates' argument focuses on the terms "avoid" and "bypass" presumably because the other
terms do not encompass what occurred in this situation. "Avoid" is defined as "to keep away
from; keep clear of; shun; or to make void." The Random House College Dictionary, 84 (1973).
"Bypass" is defined as "to avoid." Id at 186. These words, as well as the remainder of the
words describing circumvent, imply that a person circumvents a technological measure only
when he affirmatively performs an action that disables or voids the measure that was installed to
prevent them from accessing the copyrighted material.
When the Harding firm accessed Internet Archive's database on July 9, 2003, and July 14,
2003, it was as though the protective measure was not present. Charles Riddle and Kimber Titus
simply made requests through the Wayback Machine that were filled. They received the images
they requested only because the servers processing the requests disregarded the robots.txt file
present on Healthcare Advocates' website. As far as the Harding firm knew, no protective
measures were in place in regard to the archived screenshots they were able to view. They could
not avoid or bypass any protective measure, because nothing stood in the way of them viewing
these screenshots. Healthcare Advocates has not presented any evidence to show that the
Harding firm did anything to avoid or bypass the robots.txt file in place on its website. The facts
presented show that the Harding firm benefitted from a malfunction in Internet Archive's servers.
Plaintiff has not shown that Defendants circumvented the robots.txt file.
As the facts do not show that the Harding firm avoided or bypassed the robots.txt file on
28
Healthcare Advocates' website, Plaintiff attempts to convince this court that circumvention must
be analyzed according to what the Harding firm knew, not what they did. The evidence shows
that the Harding firm knew that they were not permitted to view certain archived images, because
some of the images were blocked. Thus, Healthcare Advocates claims that Defendants knew or
should have known that they were not supposed to be able to view any of the screenshots.
Healthcare Advocates argues that any request made for archived images after the first request
resulted in a denial constitutes circumvention of its robots.txt file. It thinks that recent case law
supports this proposition.
Healthcare Advocates believes the case of Univ. City Studios, Inc., v. Corley, 273 F.3d
429 (2d Cir. 2001), is relevant here. There, the defendant posted instructions on the Internet
detailing how people could get around encrypted language on DVDs that prevented those DVDs
from being played anywhere but in a player with the decryption code. Id at 452-53. The court
found the encryption code similar to a padlock, and analogized the defendant's instructions as a
skeleton key. Id Thus, that court found that by using the decryption code a user was breaking
the lock which constituted circumvention under the DMCA. Id By posting the instructions on
the web, that defendant was aiding people in bypassing the lock.
Healthcare Advocates also believes I.M.S. Inquiry Mgmt. Sys., Ltd., v. Bershire Info.
Sys., Inc., 307 F. Supp. 2d 521 (S.D.N.Y. 2004), is relevant to this civil action. But, in that case,
a New York federal district court found that the unauthorized use of a password did not
constitute circumvention under the DMCA. Id at 530-33. While the defendant was not given
permission to use the password from the password owner, the court held that his action was not a
circumvention of the password protection. Id at 532-33. That court found that the defendant's
29
actions did not avoid or bypass the password protection even though those terms were meant to
be interpreted broadly. Id That court noted that what the defendant avoided was the permission
to use the password, and that was not the situation the DMCA was written to address. That court
said that the DMCA deals with situations where the digital walls guarding copyrighted material
are avoided. Id That defendant did not avoid the wall, rather he simply stole the key and opened
the door himself.
Neither of these cases lend support to Plaintiff's assertion. These cases do not stand for
the proposition that Plaintiff's robots.txt file was circumvented merely by the Harding firm
making requests via the Wayback Machine. The Harding firm did not use alter code language to
render the robots.txt file void like the defendant in Corley did with the encryption. They did not
"pick the lock" and avoid or bypass the protective measure, because there was no lock to pick.
Internet Archive's servers said that no lock existed when the requests were made. Nor did the
Harding firm steal passwords to get around a protective barrier like the defendant in the I.M.S.
case. No protective wall existed according to the Wayback Machine. The Harding firm could
not "avoid" or "bypass" a digital wall that was not there. The court in the I.M.S. case said that a
lack of permission does not constitute circumvention under the DMCA. Simply making further
requests is not circumvention under the DMCA.
Healthcare Advocates' inference that the Harding firm should have known that they were
not allowed to view any archived images via the Wayback Machine is both unreasonable and
irrelevant. Mr. Riddle and Ms. Titus testified that they knew some of the images they tried to
access were blocked. (Pl's Mot. Partial Summ. J. Ex. D, Riddle Dep. at 123-24; Ex. E, Titus
Dep. at 78-80.) When the screenshot was blocked, the Wayback Machine returned a message
30
stating that the page was blocked by the website owner. (Pl's Mot. Partial Summ. J. Ex. C,
printout of "Robots.txt Query Exclusion" page; Ex. D, Riddle Dep. at 139; Ex. E, Titus Dep. at
107-09.) The message also included links, one of which said, "Try another request or click here
to search for all pages on healthcareadvocates.com." (Pl's Mot. Partial Summ. J. Ex. C, printout
of "Robots.txt Query Exclusion" page.) Ms. Titus testified that when this page appeared, she
clicked on the link and received a list of all available screenshots, which she viewed and printed.
(Pl's Mot. Partial Summ. J. Ex. E, Titus Dep. at 107.) Even if it the Harding firm knew that
Healthcare Advocates did not give them permission to see its archived screenshots, lack of
permission is not circumvention under the DMCA.
The Harding firm did not circumvent the robots.txt file utilized by Healthcare Advocates.
Making requests for archived images via the Wayback Machine, even after some requests were
denied, is not avoiding or bypassing the measure. The facts show that the Harding firm received
the archived images solely because of a malfunction in the servers processing the requests. The
Harding firm is therefore granted summary judgment on count I of Plaintiff's Second Amended
Complaint. Healthcare Advocates' Motion is consequently denied.
C. Computer Fraud and Abuse Act
Healthcare Advocates alleges that the Harding firm exceeded its authorized access by
merely viewing archived screenshots of Healthcare Advocates' website via the Wayback
Machine. (Compl. ¶ 85.) The CFAA is the centerpiece of federal enforcement efforts against
computer based crimes. The statute makes it a crime to "intentionally access[] a computer
without authorization or exceed[] authorization, and thereby obtain[] information from any
protected computer if the conduct involved interstate or foreign communication[.]" 18 U.S.C. §
31
1030(a)(2)(C) (2007). "[T]he term `exceeds authorized access' means to access a computer with
authorization and to use such access to obtain or alter information in the computer that the
accesser is not entitled so to obtain or alter[.]" 18 U.S.C. § 1030(e)(6). A protected computer is
one "used in interstate or foreign commerce or communication[.]" 18 U.S.C. § 1030(e)(2)(B).
Under the statute, "Any person who suffers damage or loss by reason of a violation of this
section may maintain a civil action against the violator to obtain compensatory damages and
injunctive relief or other equitable relief." 18 U.S.C. § 1030(g). "A civil action for a violation of
this section may be brought only if the conduct involves 1 of the factors set forth in clause (i),
(ii), (iii), (iv), or (v) of subsection (a)(5)(B)." Id Subsection 1030(a)(5)(B)(i) imposes a
requirement that the party bringing the claim must suffer a loss "during any 1year period . . .
aggregating at least $5,000 in value[.]" "Damages for a violation involving only conduct
described in subsection (a)(5)(B)(i) are limited to economic damages." 18 U.S.C. § 1030(g).
While Healthcare Advocates' computers were not accessed by the Harding firm, that fact
does not bar them from seeking the remedy available under this statute. Healthcare Advocates
only needs to show that the Harding firm unlawfully accessed some protected computer, and by
those actions, Healthcare Advocates was harmed. The facts show that the Harding firm accessed
the Wayback Machine from their offices in Pennsylvania while investigating the claims against
their clients. (See Pl's Mot. Partial Summ. J. Ex. B, Bonini Dep. at 10.) Internet Archive's
offices are located in California, and it maintains its database of archive images there as well.
(See Pl's Mot. Partial Summ. J. Ex. I, Mohr Dep. at 39-40.) Therefore, Internet Archive's
computers were used in interstate commerce, and are protected computers under the CFAA.
The next question that needs to be addressed is whether Healthcare Advocates has
32
suffered the loss required for it to even raise a claim under the CFAA. Healthcare Advocates
must show that it has suffered a loss in the aggregate of $5,000. Loss is defined in the statute as
"any reasonable cost to any victim, including the cost of responding to an offense, conducting a
damage assessment, and restoring the data, program system, or information to its condition prior
to the offense, and any revenue lost, cost incurred, or other consequential damage incurred
because of interruption of service[.]" 18 U.S.C. § 1030(e)(11).
Kevin Flynn, president of Healthcare Advocates, said in his deposition that the company
sustained no physical damage to its computers. (Pl's Mot. Partial Summ. J. Ex. A, Flynn Dep. at
216.) However, Mr. Flynn testified that Healthcare Advocates suffered economic harm in having
to investigate how the Harding firm obtained the archived information, and in determining what
his company's legal duties were concerning any secure data that may have been contained in
those archived screenshots. (Id) His investigation occurred after the Complaint was filed.
Mr. Flynn testified that there were direct out of pocket expenses to Healthcare Advocates
of about $750. (Id at 216-17.) For the purposes of this Motion, the Harding firm does not
dispute this amount. Healthcare Advocates claims that the remainder of the $5,000 requirement
consists of the time spent by Mr. Flynn investigating the problem, approximately 160 hours. (Id
at 217.) Mr. Flynn valued his time at between $60100 per hour, which would mean that
Healthcare Advocates incurred between $9,60016,000 in expenses for Mr. Flynn's services.
(Id at 229.) While Mr. Flynn has not stated exactly what type of investigative work he
performed, but the statute allows the costs of time spent assessing computer systems to be
counted towards the loss requirement. See 18 U.S.C. § 1030(e)(11).
Mr. Flynn also mentioned other costs incurred by Healthcare Advocates during the
33
Underlying Litigation, such as litigation expenses, attorney's fees, and the costs of hiring experts.
(Pl's Mot. Partial Summ. J. Ex. A, Flynn Dep. at 219-228.) These costs cannot be counted
toward the statutory threshold. See Wilson v. Moreau, 440 F. Supp. 2d 81, 110 (D.R.I. 2006). It
should be noted that Mr. Flynn's 160 hour total included four days he spent doing legal research
at the Jenkins Law Library. (Pl's Mot. Partial Summ. J. Ex. A, Flynn Dep. at 219.) These hours
may not count towards the threshold amount as they do not appear to be involved in assessing the
integrity of Healthcare Advocates' computer systems. Disregarding the time Mr. Flynn spent in
the Jenkins Law Library, it still appears that Healthcare Advocates has established their $5,000
loss requirement based on Mr. Flynn's testimony. Healthcare Advocates may bring this claim.
The material facts pertinent to this claim are the same as the facts relevant to the above
discussion under the DMCA. No dispute exists between the parties as to the Harding firm's
actions regarding the Wayback Machine, or the server malfunction that resulted in the archived
images being presented upon request. Thus, the question before this Court is whether these facts
show that the Harding firm exceeded its authorized access and violated the prohibitions of the
CFAA.
Exceeding authorized access means "to access a computer with authorization and to use
such access to obtain or alter information in the computer that the accesser is not entitled so to
obtain or alter." 18 U.S.C. § 1030(e)(6) The term "authorization" has not been defined in the
statute. Therefore, I must apply the word's ordinary meaning in my interpretation. Authority is
defined as "a power or right delegated." The Random House College Dictionary 91 (1973). The
statute penalizes persons who obtain information from a protected computer by intentional and
unauthorized access. 18 U.S.C. § 1030(a)(2). The statute specifies an "intentional standard
34
[because it] is designed to focus Federal criminal prosecutions on those whose conduct evinces a
clear intent to enter, without proper authorization, computer files or data belonging to another."
United States v. Morris, 928 F.2d 504, 508 (2d Cir. 1991). Viewing material on a computer
screen constitutes "obtaining" information under the CFAA. See S. Rep. No. 99-432, at 6-7
(1986). The Harding firm must have intentionally viewed screenshots it was not entitled to see to
be liable under the CFAA.
Healthcare Advocates has not shown that the Harding firm viewed any images that they
were not entitled to see. The facts show that the Harding firm made requests via their web
browsers to the Wayback Machine to view archived web pages, and those requests were filled.
(Pl's Mot. Partial Summ. J. Ex. D, Riddle Dep. at 117; Ex. E, Titus Dep. at 67-8.) Kimber Titus
testified that she typed the web address she sought into the Wayback Machine, hit the "Take Me
Back" button, and a list of screenshots available for viewing was presented. (Pl's Mot. Partial
Summ. J. Ex. E, Titus Dep. at 68-89.) She clicked on the dates individually, and when an image
appeared on her computer screen she printed a copy. (Id at 78.) Ms. Titus testified that
sometimes clicking on a date returned the "Robots.txt Query Exclusion" message. (Id at 107.)
When this occurred, she clicked on the link that said "search here for all pages," and was
provided with the list of dates from which she continued searching. (Id) No evidence has been
presented showing that the Harding firm did anything to get past the blocking mechanism. The
facts show that the Wayback Machine gave Ms. Titus the ability to view archived screenshots of
Healthcare Advocates' website.
No evidence has been presented showing that the Harding firm exceeded that access. The
facts do not show that the Harding firm did anything other than use the Wayback Machine in the
35
manner it was intended to be used. Gideon Lenkey testified that the Harding firm accessed the
Internet Archive's website with only an ordinary web browser, they did not employ any special
tools. (Pl's Mot. Partial Summ. J. Ex. G, Lenkey Dep. at 61.) He wrote that the Harding firm
obtained these images because Internet Archive's servers experienced a condition that made them
forget about protective controls. "On some occasions and for reasons unknown these two servers
would determine that robots.txt file did not exist on the HCA site and on those occasions would
deliver the protected content." (Pl's Mot. Partial Summ. J. Ex. G, Report of Gideon Lenkey at
6.) The Harding firm only viewed the archived screenshots that the Wayback Machine provided.
As the facts do not show that the Harding firm exceeded the access provided, Plaintiff
attempts to convince this Court that determination of this issue must focus on the fact that the
Harding firm viewed archived screenshots that the copyright holder did not want them to see.
Healthcare Advocates argues that the Harding firm's access was unauthorized because the
images were viewed without its explicit permission. This fact is irrelevant. The statute only
penalizes persons who exceed authorization. The Harding firm was given the power to view the
images by the Wayback Machine. While the screenshots may have been returned in error, they
were ultimately provided. The Harding firm requested archived images from Internet Archive's
database, and those requests were filled. The Harding firm got lucky, because the servers were
malfunctioning, but getting lucky is not equivalent to exceeding authorized access.
Healthcare Advocates cites Southwest Airlines v. Farechase, Inc., 318 F. Supp. 2d 435
(N.D. Tex. 2004), as relevant to this case. In that case, the court found that Southwest had
sufficiently stated a claim under the CFAA by showing that a person who was given access to
fare and price information on Southwest's website had repeatedly used scraping software to steal
36
that information for use on his own website. Id at 439-40. In that case, the defendant had
agreed not to scrape the information, and the court found that these facts sufficiently alleged a
claim under the CFAA. Here, the evidence shows that the Harding firm received the messages
stating that the images were blocked. But, unlike the defendant in Southwest, the Harding firm
took no action after they were informed that they were not authorized to see those screenshots.
A cursory review of applicable case law shows that defendants need to something more
than merely using a public website in the manner it was intended to be liable under the CFAA.
See Morris, 928 F.2d at 508 (transmission of worm was access without authorization); Int'l
Airport Centers, L.L.C. v. Citrin, 440 F.3d 418, 419-20 (7th Cir. 2006) (employee who
downloaded secure erasure program to his computer at work would be exceeding authorized
access under CFAA); EF Cultural Travel v. Zefer Corp., 318 F.3d 58, 62-63 (1st Cir. 2003)
(explicit statement on website restricting scraping could establish that defendant who scraped
information exceeded authorized access); United States v. Mitra, 405 F.3d 492, 494-495 (7th Cir.
2005) (interference with computer based radio system used by police, fire, and ambulance was
unauthorized access).
Healthcare Advocates has not provided evidence showing that the Harding firm
intentionally exceeded their authorized access. Summary judgment must be granted in favor of
the Harding firm on count III of the Second Amended Complaint. Healthcare Advocates' Motion
for the same is consequently denied.
D. Common Law Conversion and Trespass to Chattels Claims
Healthcare Advocates' final two claims arise under the laws of Pennsylvania. In these
allegations, Healthcare Advocates avers that the Harding firm interfered with its common law
37
rights in respect to the copyrighted archived screenshots. In paragraph 98 of the Second
Amended Complaint, it alleged that the Harding firm's "conduct amounted to an intermeddling
with Healthcare Advocates' possessory rights in the archived historical content of the
www.healthcareadvocates.com web site." In Paragraph 103, Plaintiff claims that the Harding
firm's "conduct seriously interfered with Healthcare Advocates' lawful right of control over the
content of the www.healthcareadvocates.com web site."
The Copyright Act contains a provision explicitly stating that all common law or state
law rights that are equivalent to the rights available under copyright protections are preempted.
17 U.S.C. § 301(a) (2007).7 The Third Circuit has articulated the extra element test to assess
when common law claims are preempted by this provision. Under the test, "[I]f a state cause of
action requires an extra element, beyond mere copying, preparation of derivative works,
performance, distribution or display, then the state cause of action is qualitatively different from,
and not subsumed within, a copyright infringement claim and federal law will not preempt the
state action." Dun & Bradstreet Software Serv., Inc., v. Grace Consulting, Inc., 307 F.3d 197,
217 (3d Cir. 2002). These common law claims must require another element beyond what the
copyright infringement test already requires to survive preemption.
Under Pennsylvania law, the common law tort of trespass to chattels is governed by the
Restatement (Second) of Torts § 217. That section states that a trespass to chattel may be
38
committed by (a) dispossessing another of their chattel, or (b) using or intermeddling with a
chattel in the possession of another. Pestco, Inc. v. Assoc. Products, Inc., 880 A.2d 700, 708 (Pa.
Super. Ct. 2005). Conversion is defined in § 222 of the Restatement (Second) of Torts as a
serious interference with the chattel of another. Intermeddling means to interfere. The Random
House College Dictionary 694 (1973). The tests for these claims require nothing more than what
is required under copyright law to establish infringement. Healthcare Advocates merely seeks to
remedy its federal copyright rights under the laws of Pennsylvania. These common law claims
are preempted under 17 U.S.C. §301(a). Thus, the Harding firm is granted summary judgment
on counts V and VI of Healthcare Advocates' Second Amended Complaint.
An appropriate Order follows.
39
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
HEALTHCARE ADVOCATES, INC.,
Plaintiff,
v.
HARDING, EARLEY, FOLLMER &
FRAILEY, et. al.,
Defendants.
____________________________________
CIVIL ACTION
No. 05-3524
ORDER
AND NOW, this 20th day of July 2007, upon consideration of Defendants'
Motion for Summary Judgment, Plaintiff's Motion for Partial Summary Judgment, and the
Responses in Opposition thereto, it is hereby ORDERED that Defendants' Motion for Summary
Judgment (Doc. No. 56) is GRANTED, and Plaintiff's Motion for Partial Summary Judgment
(Doc. No. 58) is DENIED.
BY THE COURT:
/s/ Robert F. Kelly
ROBERT F. KELLY
SENIOR JUDGE
40
1
A screenshot is an image taken by the computer to record the visible items displayed on the monitor or
another visual output device. Usually this is a digital image taken by the host operating system or software running
on the computer device, but it can also be a capture made by a camera or a device intercepting the video output of
the computer. Wikipedia , The Free Encyclopedia, "Screenshot" available at http://en.wikipedia.org/wiki/Screenshot.
2
§ 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do
and to authorize any of the following:
( 1 ) to reproduce the copyrighted work in copies or phonorecords;
( 2 ) to prepare derivative works based upon the copyrighted work;
( 3 ) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of
ownership, or by rental, lease, or lending;
( 4 ) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures
and other audiovisual works, to perform the copyrighted work publicly;
( 5 ) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic,
or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the
copyrighte d work publicly; and
( 6 ) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio
transmission.
3
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including
such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes
such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is
a fair use the factors to be considered shall include --
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes;
( 2 ) the nature of the copyrighted work;
( 3 ) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
( 4 ) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon
consideration of all the above factors.
The Second Circuit has said, "[t]he doctrine of fair use . . . permits courts to avoid rigid application of the
copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Iowa
State Univ. Research Found., Inc. v. Am. Broad. Co., 621 F.2d 57, 60 (2d Cir. 1980).
4
It should be noted that the alleged infringing activity happened two weeks after the complaint in the
Underlying Lawsuit was filed. Healthcare Advocates did not attach the materials that defendants, clients of the
Harding firm, were alleged to have infringed. The defendants were not informed about what exactly they were
alleged to have infringed. Acting prudently and reasonably, the Harding firm attempted to find all publicly available
information on Healthcare Advocates in their efforts to decipher the allegations contained in the Complaint.
5
INTERROGATORY NO. 15
Explain when and how HEFF first became aware that information relating to the conduct of its
representatives on July 9, 2003 and July 14, 2003 as alleged in the Complaint may be relevant to the Underlying
Action.
6
Copies of the archived screenshots were submitted to this Court in camera during the Underlying
Litigation. Healthcare Advocates' has not claimed that this action by the Harding firm constitutes infringement of
their copyright rights. According to a leading treatise on copyright law, no court has found that presentation of the
copyrighted works to a court on which the infringement action is brought constitutes an instance of infringement. 4
Melville B. Nimmer & David Nimmer, Nimmer on Copyrights, § 13.05[D][2] (2003). This Court is not of the
opinion that this action would be infringement, but a claim to this effect has not been raised, so this Court need not
fully address the question.
7
§ 301. Preemption with respect to other laws
( a ) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive
rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a
tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103,
whether created before or after that date and whether published or unpublished, are governed exclusively by this
title . Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or
statutes of any State.
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