as they knew, no protective measures were in place with respect to the archived screenshots they
were able to view, and they could in fact not avoid or bypass any protective measure because on
the dates in question nothing stood in the way of them viewing the screenshots.^963
Healthcare Advocates argued that liability under the DMCA should be judged on what
the Harding firm knew, not what actions it took. Healthcare Advocates argued that the Harding
firm knew it was not permitted to view certain archived images, because some of the images
were blocked. Healthcare Advocates therefore claimed that the firm knew or should have known
that it was not supposed to be able to view any of the screenshots at issue, and that any request
made for archived images after the first request resulted in a denial constitute circumvention of
its robots.txt file. The court rejected this argument, ruling that simply making further requests is
not circumvention under the DMCA. The requests did not alter any computer code to render the
robots.txt file void. Internet Archive’s servers indicated that no lock existed when the requests
were made. Accordingly, the Harding firm could not avoid or bypass a digital wall that was not
there.^964
The court also ruled that Healthcare Advocates’ inference that the Harding firm should
have known it was not allowed to view any archived images via the Wayback Machine was both
unreasonable and irrelevant. When a screenshot was blocked, the Wayback Machine returned a
message stating that the page was blocked by the web site owner, but the message also included
links, one of which said, “Try another request or click here to search for all pages on
healthcareadvocates.com.” When this page appeared, the firm’s employee clicked on the link
and received a list of all available screenshots.^965 The court held that, even if the firm knew that
Healthcare Advocates did not give it permission to see its archived screenshots, “lack of
permission is not circumvention under the DMCA.”^966 Accordingly, the court granted the
Harding firm summary judgment on Healthcare Advocates’ claim of a violation of the DMCA.^967
(iii) Apple v. PsystarThe facts of this case are set forth in Section II.G.1(b)(14) above. The court rejected the
defendant’s argument that Apple’s encryption of its Mac OS X operating system files, which
were decrypted by a decryption key stored within Apple’s hardware, was not an effective
technological protection measure because the decryption key was publicly available on the
Internet. “The fact that circumvention devices may be widely available does not mean that a
technological measure is not, as the DMCA provides, effectively protecting the rights of
copyright owners in the ordinary course of its operations.”^968
(^963) Id. at 47.
(^964) Id. at 47-50.
(^965) Id. at 50-51.
(^966) Id. at 51.
(^967) Id.
(^968) Apple, Inc. v. Psystar Corp., 673 F. Supp. 2d 931, 942 (quoting Sony Computer Entm’t Am., Inc. v. Divineo,
Inc., 457 F. Supp. 2d 957, 965 (N.D. Cal. 2006)).