those screenshots and storing them on hard drives at the firm also infringed the company’s
copyrights.^628
The court ruled that, “[u]nder the expansive definition of a public display, the display of
copyrighted images on computers in an office constitutes a public display.”^629 The court
concluded, however, that the Harding firm’s display and copying of those images for purposes of
defending its clients in the litigation brought by Healthcare Associates constituted a fair use.
With respect to the purpose of the use, the court noted that the images were used to better
understand what Healthcare Associates’ complaint, which did not specify what had been
infringed nor have any documents attached to it depicting the infringement, was based on.^630
Only a small group of employees were able to see the images within the law firm’s office, which
the court found was “similar to a family circle and its acquaintances.”^631 The purpose of the
printing was only to make a record of what had been viewed and for use as supporting
documentation for the defense the firm planned to make for its clients.^632 “It would be an absurd
result if an attorney defending a client against charges of trademark and copyright infringement
was not allowed to view and copy publicly available material, especially material that his client
was alleged to have infringed.”^633
The second fair use factor weighed in favor of the firm because the nature of Healthcare
Associates’ web sites was predominantly informational. The third factor weighed in favor of the
firm because, although entire images were copied, employees at the firm needed to copy
everything they viewed because they were using the screenshots to defend their clients against
copyright and trademark infringement claims. The firm also had a duty to preserve relevant
evidence. Finally, the court found that the fourth fair use factor also favored the firm, because
the value of Healthcare Associates’ web sites was not affected by the Harding’s firm’s use, and
the images viewed and copied were archived versions of the web site that Healthcare Associates
no longer utilized, suggesting their worth was negligible. Accordingly, the court held that the
Harding firm’s use of the images obtained through the Wayback Machine constituted a fair
use.^634
(^628) Id. at 2-10.
(^629) Id. at 19.
(^630) Id. at 22-23.
(^631) Id. at 24. The copyright statute defines a “public” display as one made in a place “where a substantial number
of persons outside of a normal circle of a family and its social acquaintances is gathered.” 17 U.S.C. § 101.
(^632) Id. at 24.
(^633) Id. at 24-25.
(^634) Id. at 26-29. The court also ruled that the firm’s failure to preserve temporary cache files of the screenshots
that were automatically created by the computers used by the firm’s employees to view the images through the
Internet, and were also automatically deleted by the computers’ operating system, did not constitute spoliation
of evidence. Id. at 30-38.