Liz Maritz

Thanks For Letting Me Circumvent…

Remember that time I noted that provisions of the DMCA could be used to oppress and stifle innovative activity once protected under copyright law (that time yesterday…and the day before…and last week…and probably again tomorrow)? Well here we go again! After being verily crushed as plaintiff in a trademark infringement suit, Healthcare Advocates, Inc. brought its righteous anger to bear on the law firm that had represented on of the victorious defendants. Why the wrath? Turns out that law firm Harding, Earley, Follmer & Frailey had used the Internet Archive Wayback Machine to do a little sleuthing on former versions of the Healthcare Advocates website.

See the problem?

Neither do I.

Here’s what Healthcare Advocates and its bang up legal team saw: circumvention of a technological measure designed to control access to a Copyrighted work–a violation of DMCA Section 1201(a):

“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”

The gist of the argument is that Healthcare Advocates had in place on its website a robots.txt file instructing the Wayback Machine’s web crawlers not to archive the site (read: a technological measure designed to control access to a copyrighted work). Something got hosed and some of Healthcare Advocate’s pages were archived anyway–and visible to H,E,F & F. The argument, then, was that H,E,F & F’s use of the Wayback Machine to view archived pages was a circumvention of the access control ostensibly provided by the robots.txt file.


Here’s my beef:

Simply put, the robots.txt instruction is not a “technological measure that effectively controls access to a work…” First, it was apparently not effective, given that a standard web crawl bypassed the measure–but that’s beside the point. Second, adherence to robots.txt instructions is not compulsory. Lots of robots out there don’t comply with robots.txt instructions and they are under no duty to do so. This is a technical measure that requests that another party voluntarily limit its access to a work. Third, it seems there was no circumvention. The Wayback Machine webcrawler employed no nefarious methods to unlock or break the protection supposedly provided by the robots.txt instruction — it just went in, sort of like one might enter a store or office or other physical facility of a company that was open for business.

Now, I’m not arguing that website owners don’t have the right to control access to their content – present, past, and future. I’m also not attacking anyone for developing novel legal theories. My issue is with the perils created by a statute that boots a longstanding, settled understanding of the rights of various parties under copyright out the window and encourages absurd results. Such an application of the anticircumvention provision would have a chilling effect on all Internet commerce, turning every Google search into a potentially criminal activity. To draw an analogy to pre-DMCA law, this would be akin to finding criminal copyright violation to result from someone entering a public library through the out door and reading a book. I didn’t sign up for that. Did you?

Fast forward to the dismissal of Healthcare Advocate’s complaint. For those DMCA fanboys out there who will cite this one as proof that the dangerous provisions of the DMCA will be applied sensibly, I say this: how might this have turned out if the defendant hadn’t been a law firm? What if this theory were used to bring suit against a party without the knowledge or resources to point out it’s ridiculous nature? The worry isn’t so much what happens when something like this goes before a judge — it’s what happens when this type of complaint is used as a tool for bullying and intimidation.

Leave your comment