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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The BBC Silliness

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

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

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

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

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

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

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

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

Just a friendly toot from the Cluetrain.


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