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July 12, 2005
Opening Up the Wayback Can of Worms
Back in November of last year I noted a court case in which saved Web pages from the Internet Archive (informally the Wayback Machine) was used as evidence. At the time I expressed surprise at the judge's ready acceptance of the evidence and noted that this is an extremely murky and untried legal area.
Now, if the report in the NJ Star Ledger is correct, we may see some litigation of a few of the issues raised by an archive of this sort and its involvement in copyright and court proceedings.
As best I understand it, what seems to be happening is the operators of the Wayback Machine are themselves being sued. Geist pointed to a Geocities page for a copy of the actual complaint, but it was 404 when I went to look.
What Kevin Coughlin's story says is that Healthcare Advocates is suing Wayback because the operators of Wayback failed to block access to certain archived materials during a 2003 trade secrets dispute. According to the complaint, the opposing counsel at the time obtained pages from the Wayback Machine. One issue is how those pages were obtained - did they come from normal searching or from some kind of "hacking?"
Another issue is the copyrights of the pages - if the pages were copyrighted by Healthcare Advocates, then what was Wayback doing with copies of them in the first place? And why was it serving up copies of material it didn't own the copyrights to? And were opposing counsel engaged in knowingly obtaining by extra-judicial means material they knew was supposed to be protected by IP laws? And does the Internet Archive have responsibility in part due to what it apparently admits were broken "blocking procedures"? (My instinctive guess is that their spider wasn't properly obeying robot exclusion directives.)
Kurt Opsahl, staff attorney for the EFF, is quoted as opining that the doctrine of fair use generally allows the gathering of copyrighted materials as evidence in trade secret cases. In which case, the whole thing may get chucked out quickly and no legal precedents will emerge. But I remain convinced that this is the barest tip of a huge legal iceberg that is going to crash into the business of search engines and other 'net archives, soon. Maybe not this specific case, but the issues I pointed to last year still remain completely unresolved and in the absence of guiding legislation parties wishing to establish principles have little choice except to litigate their claims and hope for good precedents.
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