Friday, December 21, 2007

Warning: Use of the Wayback Machine Can Result In Expensive Litigation

On July 20, 2007, Judge Kelly of the Eastern District of Pennsylvania issued his decision in the much discussed wayback machine litigation, see Healthcare Advocates, Inc. v. Harding, Early, Follmer & Frailey, 2007 U.S. Dist. LEXIS 52544(E.D. Pa., July 20, 2007). The wayback machine, in its simplest terms, allows one to locate screen shots of websites that have subsequently been revised or deleted. The wayback machine reviews archived images, and makes them available to the searcher unless the website owner has blocked access to the archived web pages. The lawyers at the Harding firm had web research done on Plaintiff's historic websites. Unbeknownst to Harding, Plaintiff had followed the procedures to block access, but the blocking mechanism, over which the Harding firm had no control, malfunctioned and allowed them access to archived images of the Plaintiff's website. Plaintiff sued alleging that this violated the Digital Millenium Copyright Act, the Computer Fraud and Abuse Act as well as being a copyright infringement. After some 39 pages of analysis, Judge Kelly granted the Harding firm's motion for summary judgment. Anyone who intends to use the wayback machine for web research needs to carefully parse Judge Kelly's opinion to hopefully avoid the assertion by the website owner of potential claims.

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