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Can A Law Firm Be Sued for Web Research?

That is more or less the question answered by the Eastern District of Pennsylvania in a decision issued last July that Boston IP lawyer Lee Gesmer dissects in a post yesterday at his MassLawBlog. In a case brought against a law firm for copyright infringement based on its printing and viewing Web pages, Gesmer analogized the arguments as so bizarre that they were "like watching Aristotle being forced to debate John Cleese during a Monty Python revival festival."

It seems that lawyers at the law firm Harding, Earley, Follmer & Frailey of Valley Forge, Penn., in the course of investigating a client's trade secrets and trademark infringement case, viewed and printed pages from the Web site of Healthcare Advocates Inc. -- both pages from its then-current site and archived pages found via the Wayback Machine. Healthcare sued the law firm, alleging that its surfing of these pages violated copyright law, the Digital Millenium Copyright Act and the Computer Fraud and Abuse Act.

The wrinkle in the case was that Healthcare had sought to exclude its pages from the Wayback Machine through the use of a robots.txt file that should have blocked the Wayback crawler from Healthcare's site. But a malfunction on the part of the Wayback Machine let it capture these pages at the very time that the Harding lawyers were looking for them. Of course, the Harding lawyers had no way of knowing that Healthcare had sought to block its pages or that the Wayback Machine had malfunctioned.

Given this, the federal court dismissed Healthcare's claims against the firm. But Gesmer is struck by how far the lawsuit was able to progress before getting thrown out:

The extraordinary thing about this decision, to my mind, is the time, effort and expense (the Harding firm spent over $170,000 in fees and expenses) that went into defending against allegations that should (in this writer’s opinion) never have been brought in the first place, or at least dismissed once the facts were clarified for Healthcare. Instead, the case dragged on for two years; the docket sheet has around 80 entries; both sides hired computer experts, and in the end the case was dismissed on summary judgment, in a decision where the judge spent almost 40 pages analyzing every claim made by Healthcare and dismissing it only after rigorous and in-depth analysis which went, in my opinion, far beyond the call of duty.

Healthcare, of course, has appealed.

Posted by Robert J. Ambrogi on November 30, 2007 at 01:18 PM | Permalink | Comments (4)

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