Wayback Liabilty

All of this is reminiscent of a case that took place in Colorado earlier this year. Suzanne Shell maintained a Web site called www.profane-justice.org ("Profane Justice") in Colorado, which she said was devoted to providing information, services, and other advocacy on behalf of individuals accused of child abuse or neglect. Shell's Web site was registered with the U.S. Copyright Office. Shell's Web site contained a copyright notice, stating that:

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:

These terms include charging the user $5,000 for each individual page copied "in advance of printing," granting Shell a perfected security interest of $250,000 "per each occurrence of unauthorized use" of the Web site in all of the user's land, assets and personal property, the user agreeing to pay "$50,000 per each occurrence of failure to pre-pay" for use of the Web site, "plus costs and triple damages," and agreeing to waive numerous defenses in any claims by Shell against the user. The copyright notice was accessible through an icon located on Shell's Web site. In many ways, Shell's copyright notice was not much different from Ticketmaster's terms of use. Indeed, in some ways it was predicated expressly on copyright law -- not implied by the terms of use.

The "Internet Archive," a service that copies any publicly accessible Web sites using technology called "The Wayback Machine" (with apologies to Peobody and Sherman), made automated copies of Shell's Web site in violation of the posted "Copyright Notice." According to Shell, the Wayback machine contacted and reproduced the contents of her Web site approximately 87 times between May 1999 and October 2004 and displayed her entire Web site to the public daily during that time period. Shell emailed Internet Archive requesting that her Web site contents be removed from the Wayback machine. Internet Archive did so. Shell also demanded payment of $100,000 from Internet Archive and threatened to sue if Internet Archive failed to pay. Internet Archive preemptively sued Shell in Colorado to get a court to declare that they did not owe the money.

Internet Archive argued that while its Web browser accessed Shell's Web site multiple times, it was not in fact aware of the terms of use, and Shell had no proof that any person at Internet Archive saw the copyright notice. Absent such actual knowledge, Internet Archive contended, there cannot be a contract.

The court effectively punted on this one, stating that there was not yet a factual record upon which it could determine whether the language was actually seen by anyone at the Archive, but it allowed the case to proceed. The court noted "[w]hile Internet Archive may be correct that the absence of human consent to this contract dooms Shell's claims, Shell has not had the opportunity to develop a factual record on this point. Shell has alleged the existence of a contract, breach and damages, which is sufficient to make out a claim for breach of contract." Ultimately the case was dismissed by stipulation of the parties in May, 2007. Hackers began shooting off emails to Shell with threats of hacking her site, calling her a "moron," a "stupid whore," a "retard," and calling her lawsuit "a joke," climaxing with a threat to murder and sodomize Shell's children.

Computer Contracts?

So what is the distinction between what Ticketmaster did and what Ms. Shell did? Why should the "Ticket Broker Automated Tool" bind its author to the terms of the Ticketmaster Web site (without evidence that a human read the terms) and the Wayback Machine not be bound? Can automated actions by our digital doppelgangers bind us mere mortals?

The answer is not an easy one. If I have a Web site -- particularly one with copyrighted material on it -- I have a right to put limitations (even unreasonable ones) -- on the access and use of that Web site. I can get you to agree to access the site only on alternate Thursdays when there is a full moon. Companies routinely put in a host of terms in TOSs, TOUs, Privacy Policies, and EULAs that we mortals might consider to be unreasonable. The question here is not "are the terms reasonable?" or "are the terms enforceable?" but ultimately, "can it reasonably be said that I agreed to them?" Just because I agreed to unreasonable terms doesn't mean that they are enforceable, but that is a separate question.