Internet archive DMCA lawsuit

William Paltry has decided to break his own rules about not commenting on complaints or motions, as a result of a complaint "n the United States District Court for the Eastern District of Pennsylvania, Healthcare Advocates, Inc. v. Harding, Early, Follmer & Frailey, et al."

The basic story is that one side used the wonderful Internet Archive to get archived material of the other side's website. So far so good. The Internet Archive trawls the web collecting material from websites unless owners of those websites opt out e.g. by asking the Internet Archive folks directly or by putting an opt out piece of code on their webwite called robots.txt. Healthcare Advocates stuck the blocking code on their site on 8th July 2003. Apparently by sending repeated requests to the site, Harding et al's lawyers were still able to get the material archived from the site, turning up the information 112 times from 849 attempts. It's not clear if any of the pages they got post dated the implementation of the robot.txt file.

Healthcare Advocates are now therefore claiming that Harding et al have bypassed copy protection technologies, which is illegal under the Digital Millenium Copyright Act. To quote Paltry,

"It is alleged that the robots.txt denial text string is a technological circumvention measure and that defendant law firm circumvented it. This claim, in my opinion, is factually and legally wrong. Factually, at least from the complaint, it does not appear that the law firm "circumvented" anything, if by circumvent we mean devised a mousetrap to bypass the denial text string. Instead, it seems as if defendant kept banging on the URL until, for whatever reason, the denial failed to be recognized. This is like going down a row of houses and trying doors to see if they are open. If they aren't you move on until you find one that is. If it is open you walk in, but you certainly haven't circumvented an access control mechanism."

He also fails to see how the robot.txt file can be considered to meeting the legal definition of a "technological measure that effectively controls access to a work"

I'm sure he's right that the case will be thrown out but this is just another indication of how far lawyers are prepared to go to exploit the letter of the law. After all the lawyers will be thinking, the file is controlling access to copyrighted material and the defendants apparently managed to get access to that material anyway, so they must have bypassed a technical access control mechanism in some way? So they've figured that it is worth arguing before a court as one of a string of complaints. Potentially good court room tactics but it depends on how the judge views it.