Last year, I did a post cautioning lawyers about use of internet archive tools for research. The post was based on a federal lawsuit involving research done by a law firm concerning copyright infringement. The law firm used an internet search tool, the 'wayback machine,' to search archived copies of the adversary's website to show that there was no infringement.
According to an article in Law.com's Small Firm Business (originally from the New Jersey Law Journal), a court determined recently that the law firm did not violate copyright or anti-hacking laws by using the archive tool, even though the website owner thought they'd put controls in place to block viewing of the archived pages.
According to the court, the law firm could not be held responsible for the failure of the protections that the adversary thought they'd put in place. In fact, the court held that the law firm was obligated to preserve evidence that would help defend its client. Since the firm did its research through publicly available sites and did not hack into passowrds or otherwise use illegal means to obtain the information, the court found that the law firm did nothing wrong.
There was no showing that the law firm exceeded publicly available acceses, regardless of whether that access was obtained through a mistake (the pages should have been blocked, but weren't). The court also held that since the law firm did not publicly disseminate the pages, but kept them for internal use for the lawsuit, there was no violation of copyright, despite the large volume of pages printed from the website. According to the court, the use of those pages was a 'fair use' under copyright because they were being used to assess the claims made against the law firm's client.
Finally, the court found that since the archived pages in question were once available for the world to view on the adversary's site, the law firm had "no reason to anticipate that using a public website to view images of another public website would subject them to a civil lawsuit containing allegations of hacking."
It seems the court laid the problem at the feet of the service that was supposed to block the pages, rather than blaming the law firm for being thorough in its research and obtaining the archived web pages legally off of the internet. Any other result would have wreaked havoc on law firms' attempts to research websites and archived pages on the internet
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