This case involves a patient advocacy organization. The advocacy organization had placed a robots.txt file on its website which was supposed to alert the web archive not to archive screenshots of the website. Servers and internal software for the web archive were not operating as intended and a law firm obtained screenshots for the website as part of their investigation of claims against the organization that were alleged in a trademark case brought by one of the law firm’s clients. The organization filed a lawsuit against the law firm for copyright infringement and accused them of illegal hacking and spyware use to disable encrypted firewalls since they circumvented the electronic protective measure of the robots.txt file in violation of federal law.
Question(s) For Expert Witness
- 1. If a law firm uses a web archive to access archived screenshots of protected images that are present on the archive’s database, does this constitute illegal hacking?
Expert Witness Response
A web archive is an online library of digital media that can maintain billions of screenshots of web pages and can make those screenshots available to the public. The web archive’s database can give the public the ability to study websites that may have been changed or no longer exist. Any person with a web browser can search the web archive’s database by using an information system that allows the user to request archived screenshots of web pages on the database. Website service owners who do not want their sites preserved in the database can request to be excluded by the use of a robots.txt exclusion protocol. This exclusion protocol removes the public’s ability to access any already archived screenshots stored in its database. If the servers at the web archive malfunction and are not respecting robots.txt files, the public can view archive screenshots of a website. The Digital Millennium Copyright Act (“DMCA”) prohibits the circumvention of protective measures that restrict access to copyrighted works, such as web archive images of web pages. In this case, the law firm may have infringed the copyrighted web pages, but they are probably not guilty of hacking because their use of the screenshots probably constituted “fair use.” Fair use is a defense to copyright infringement where an infringer is excused for using copyrighted works for such uses as news reporting, scholarship or research. The law firm’s use of the screen shots is probably fair use because they were viewed in connection with the firm’s work in defending a client and this type of research or “investigation” probably is not hacking or infringement but is a permissible fair use.