defendant had violated the anti-circumvention provisions of the DMCA by circumventing the
quality control feature to gain access to the plaintiff’s source code to copy it.^955
The court found it questionable that the quality control feature was a technical measure
that effectively controlled access to a protected work within the purview of the DMCA. The
court noted that the protected work at issue was the source code of the program, and the user
detection feature was a part of the program itself that in no way controlled access to the source
code. Rather, it merely alerted the plaintiff as to who was using the program. Consequently, the
user detection feature would not prevent anyone from gaining access to the source code and
copying it verbatim. Moreover, the feature came into play only after a user had conducted an
inspection, and did not prevent unauthorized users from accessing the program in the first
instance.^956
(ii) Healthcare Advocates, Inc. v. Harding, Earley,
Follmer & Frailey
In Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey,^957 the court
addressed the issue of whether a robots.txt file applied to a web site to indicate no archival
copying by robots should take place constitutes an effective technological measure. Healthcare
Advocates had filed a lawsuit alleging that a competitor infringed trademarks and copyrights and
misappropriated trade secrets belonging to Healthcare Advocates. The defendants in that case
were represented by the boutique IP law firm of Harding, Earley, Follmer & Frailey. To aid in
preparing a defense, on two occasions employees of the Harding firm accessed screenshots of
old versions of Healthcare Advocates’ web sites that had been archived by the Internet Archive’s
web site (www.archive.org). The old versions of the web site were accessed through the
“Wayback Machine,” an information retrieval system offered to the public by the Internet
Archive that allowed users to request archived screenshots contained in its archival database.
Viewing the content that Healthcare Advocates had included on its public web site in the past
was very useful to the Harding firm in assessing the merits of the trademark and trade secret
allegations brought against the firm’s clients.^958
The Internet Archive had a policy to respect robots.txt files and not to archive sites
containing a robots.txt file that indicated the site should not be archived. In addition, for those
web sites that did not have a robots.txt file present at the web site’s inception, but included it
later, the Internet Archive would remove the public’s ability to access any previously archived
screenshots stored in its database. The archived images were not deleted, but were instead
rendered inaccessible to the general public, and the Internet Archive’s web crawler was
instructed not to gather screenshots of that web site in the future.^959
(^955) Id. at 4-5, 22.
(^956) Id. at 23.
(^957) 2007 U.S. Dist. LEXIS 52544 (E.D. Pa. July 20, 2007).
(^958) Id. at 1-3.
(^959) Id. at 7-8.