Just read that a Colorado website owner is attempting to sue archive.org for accessing and making copy of her website.
Suzanne Shell attempted to sue on grounds of conversion, civil theft, breach of contract, and violations of the Racketeering Influence and Corrupt Organizations act and the Colorado Organized Crime Control Act.
The court ruling last month granted the Internet Archive’s motion to dismiss the charges, except for the breach of contract claim. If this breach of contract claim was to succeed, it would have a massive, wide-ranging impact on the Internet.
Suzanne Shell’s website http://www.profane-justice.org/ website allegedly contains (or contained) a copyright notice stating:
“IF YOU COPY OR DISTRIBUTE ANYTHING ON THIS SITE – YOU ARE ENTERING INTO A CONTRACT. READ THE CONTRACT BEFORE YOU COPY OR DISTRIBUTE. YOUR ACT OF COPYING AND/OR DISTRIBUTING OBJECTIVELY AND EXPRESSLY INDICATES YOUR AGREEMENT TO AND ACCEPTANCE OF THE FOLLOWING TERMS:“
(Disclaimer: the text above comes from another site, I have not viewed the statement on her site, as by her logic, viewing it is to agree to it, and I do not agree).
The terms include paying $5,000 for each individual page copied “in advance of printing”, along with other legal waffle including agreeing to pay “$50,000 per each occurrence of failure to pre-pay”,”plus costs and triple damages”, and agreeing to waive numerous defenses in any claims by Shell against the user.
The copyright notice is accessible through an icon/link on the website.
I think the first and foremost problem with this approach is that whenever a website is accessed, a “copy” is made. In the most common instance, a user using a web browser to access the site, the browser will copy the site’s HTML and associated images into the browser’s cache to speed up subsequent page loads. Therefore, there is no way to find out about the existence of the contract and its terms without having first broken them. That should clearly be unenforceable – she may as well try putting “by reading this contract, you indicate your acceptance of it”.
As a poster on the Slashdot story about this matter states,:
“I wonder if she has an answer machine? Call it, then replay a message including ‘If you don’t agree say ‘No’, otherwise we consider you agree to our contract’ [short silence] ‘Thank you. You have agreed to our terms and conditions. We will send you the invoice in…'”
Shell contents that Internet Archive formed a contract with her when it reproduced her website contents, and then breached this contract when it failed to pay her the prescribed fees. It is agreed that the parties did not form an explicit contract. Rather, Shell states that Internet Archive entered a contract with her by its conduct in reproducing her web materials.
Internet Archive argues that it never entered into a contract with Shell.
I would have to agree – there was no way for Internet Archive to have known that such a “contract” existed, or that Suzanne Shell did not want the contents of her website to be archived.
There is a well-known standard for requesting that your website contents should not be retrieved or stored by automated processes, known as the robots.txt file. Suzanne Shell did not have a robots.txt file on her website – if she had a correctly written robots.txt file present requesting that the materials on her site not be retrieved by automated processes (or “robots”) then Internet Archive would have complied with that request. In the absence of any such request made in the commonly known and used form, it is a reasonable assumption by Internet Archive that the material, having been made publically accessible on the Internet, was OK to archive.
The Internet Archive provides clear and simple information about how to prevent your site being included, and remove any existing copies of it, on their FAQ page and in more detail on their Removing documents from the Wayback Machine page.
On December 12 2005, Suzanne Shell emailed the Internet Archive asking them to remove the copies of her site from their archive, which they did. She also demanded payment of $100,000, which the Internet Archive of course did not agree to pay (quite correctly, in my opinion).
If a court finds that Internet Archive was in breach of this contract which it could not have been reasonably expected to even know about until contacted by Suzanne Shell, this could have wide-ranging implications for the Internet.
As well as the Internet Archive and any other similar services, search engines such as Google necessarily access all websites they can find, and store a summary of the information for searching, and often also a full cached copy of the pages it retrieved. I’m sure that Suzanne Shell has used Google at least once. If she believes that what Internet Archive (and also Google) is illegal, then she has willingly used a service she believes commits illegal acts – where are her morals there then?
Her website currently carries a notice that her site is receiving a lot of traffic from “misguided people who think I’m terrible for suing the Internet Archive”, and claims that “Internet Archive sued me first”.
Er… from what I’ve read, Internet Archive did not sue her first, they filed a motion to protect themselves from the lawsuit which Suzanne Shell threatened them with if they did not pay her the fees she was attempting to extort from them.
However, she also states that she is receiving non-stop harrassment from phone calls and emails – I believe that is wrong, and most likely illegal. People, let the courts sort it out, harassing her will not help.
I really hope the courts throw this case out. She may well have a valid case if a human being had accessed her site and copied content from it, attempting to pass it off as their own without proper attribution, and refused to comply when she asked for the copy to be removed. The Internet Archive has not done that, does not intend to profit from archiving copies of websites, and always makes it very, very obvious where the material comes from, and provides easy and well-known methods to indicate that you do not wish for your site to be included.
Oh, and the small print of this post: “If you are accessing this blog post or its content in any form by any method and your name is “Suzanne Shell” or you are in any way connected with Suzanne Shell or her website, legal team, family, friends or any pets she may have, you agree to pay a fee of £500,000 UK pounds for each reading of the material. You may not copy or redistribute the material without further payment of a £750,000 redistribution fee for each copy of the material you choose to distribute, and agree to indemify the owner of this website, and every other user of the Internet, against any legal actions you may wish to take in the future”.