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The DMCA and the Wayback Machine:

Bill Patry has a fascinating post on a novel and seemingly quite troubling lawsuit; I haven't focused closely on this, and probably won't be able to for several days, but I thought I'd pass it along for those who are following this subject. Here's the opening paragraph:

On July 8th, a complaint was filed in the United States District Court for the Eastern District of Pennsylvania, Healthcare Advocates, Inc. v. Harding, Early, Follmer & Frailey, et al. . . . Those who decry the DMCA as an (attempted) tool of oppression will find more than ample support in this effort. Other laws are implicated too, including some I venture to guess most IP lawyers have never heard of at least in the IP context, for example, a Greta Garbo like claim for "Intrusion upon Seclusion." Others, such as the Computer Fraud & Abuse Act and trespass to chattels have become better known recently but are invoked here in a novel way, to say the least. In my opinion . . ., the Healthcare Advocates complaint represents a misuse of the legal process. . . .

Some Jarhead:
Nice try.

You can't unmake history (no matter how hard John Kerry wished he could). The DMCA aspect of that complaint suffers from the simple fact that for years (about 5), there was no protected content.

Employing protection today, and expecting it to apply to material copied and replicated in the past, is a bit much.

Unless I'm allowed to patent the wheel; right now, before anyone else builds another one.
7.12.2005 7:48pm
William Patry (mail) (www):
I don't see how you can say there was no protected content. Copyright has been automatic since 1/1/78, and certainly the site as a whole is original. And to boot, there is a registration for it.
7.12.2005 8:55pm
DC Lawyer:
I think he means technologically protected, so that it's a 1201(a) violation to circumvent the protection.

The original website has been "Patried," and I can't find another copy of the complaint, so I can't tell what they are claiming was the work protected by the technological protection measure that was circumvented.
7.12.2005 11:47pm
jd:
This is a really interesting subject.

The question uniting many of these causes of actions is: "What constitutes tresspass?" If you have a network service running on a computer, on what basis can you expect a potential user to determine whether or not his access is permissible. Remember: many such access opportunities are permissible so one can reasonably argue that the default presumption is that access is permitted, but that might not be the service providers intent.

Now consider: the service providing computer contains legal archives of copyright material. A user arrives and accesses those resources. Is the service provider guilty of distributing? The distribution took place because the user instructed the service provider's computer to distribute the file.

Moreover... it is permissible for me to place copyright materials on my computer (which I rightfully possess) and then permit access to those materials within the confines of my computer but under the direction of someone connecting remotely. Therefore, mere availability of access cannot be a crime.

Those two ideas combine... and I can't see how any prosecution can be sustained against "file-sharers".

Can someone help me out here?
7.13.2005 8:00pm