Law Firm, Internet Archive Named in Copyright Suit

An Internet archive site and a Philadelphia-area law firm have been named in a lawsuit filed by a health care company that claims the defendants illegally obtained access to old versions of its web pages during discovery in a separate civil case.

The case highlights the legal headaches that can stem from efforts to preserve the historical record of the Internet, where millions of web sites are constantly being added, taken down and changed.

The Complaint

According to the complaint, employees of Harding, Earley, Follmer & Frailey, a Valley Forge, Pa., law firm, hacked into previous versions of healthcareadvocates.com, a web site owned by plaintiff Healthcare Advocates Inc. The company helps patients deal with hospitals, insurers and other components of the health care system.
Old versions of the web site were stored on computers belonging to Internet Archive, a nonprofit organization that preserves creative works in digital form. According to the complaint, Internet Archive uses special software known as a "crawler" program to copy web sites as they exist at a particular date and time. Visitors to Internet Archive's web site can use a search engine known as the "Wayback machine" to locate and view the preserved web sites.

Denial Text String

Web site owners who do not want their old site versions to be accessible to the public can insert a line of text, known as a "denial text string," into a file called "robots.txt" on the computer that hosts the archived site. The code denies access to users of the Wayback machine and alerts Internet Archive's crawler program to refrain from making copies of the site in the future.

According to the complaint, an employee of Healthcare Advocates inserted the denial text string into the robots.txt file for healthcareadvocates.com July 8, 2003.

Accusation of Misuse

About two weeks earlier, the complaint states, Healthcare Advocates filed a trade-secret and unfair-competition lawsuit against a competitor, Health Advocate Inc., accusing it of misusing information Healthcare Advocates supplied under the terms of a nondisclosure agreement. The Harding law firm represented one of the defendants in that case.

Healthcare Advocates claims that, during discovery in the trade-secret case, employees of the Harding firm made hundreds of attempts to access prior versions of the healthcareadvocates.com site via the Wayback machine.

Although most of those attempts did not succeed, the complaint states, the firm did manage on 92 occasions to get around the denial text string and obtain access to the sites.

Digital Millennium Copyright Act

The complaint claims the defendants violated the Digital Millennium Copyright Act, which makes it illegal to circumvent technological measures that protect access to copyrighted works. Here, the complaint alleges, the healthcareadvocates.com site is protected by copyright, and the denial text string is a "technological measure" that protects access to it.

The complaint also includes allegations of copyright infringement, violation of the Computer Fraud and Abuse Act, trespass and "intrusion upon seclusion" against the law firm, and breach of contract, breach of fiduciary duty and negligent misrepresentation against Internet Archive.

The complaint seeks unspecified compensatory damages and attorney fees.