Does Rocky & Bullwinkle Hold the Key to Unlocking the Mystery of Fair use in The Age of Internet Archiving?
| Author | Kelly Jines-Storey |
| Position | J.D. 2007, Capital University; B.A. 1997, Loyola University Chicago |
| Pages | 1021-1057 |
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Take not from others to such an extent and in such a manner that you would be resentful if they so took from you.
-Joseph A. McDonald on non-infringing uses1
"Sherman and I entered the WABAC and were immediately wisked back through time," said Mr. Peabody.2 Although that scenario was presented by a genius, talking dog and his pet boy in the beloved Rocky & Bullwinkle cartoon, a type of time travel is exactly the goal of the Wayback Machine, the Internet Archive's database of web pages that date back to 1996.3 With the Wayback Machine, its name homage to the WABAC of cartoon fame, digital history and culture can be explored along a space-time continuum.4 This is possible because the Internet Archive views the web as a cultural artifact and has declared as its mission the preservation of the web's digital history.5
With this twenty-first-century luxury of viewing the digital past, as it once existed, comes the uncharted legal territory of the digital age. EvenPage 1022 though copyright law provides the precedent for handling some of the larger legal issues facing a digital archive, distinct factual situations still arise which are unique to the digital infrastructure of the particular archive. The real dilemma lies in deciding whether copyright law can handle the combination of these legal issues and unique factual situations or whether other areas of the law need to be extended.
This Comment will show why courts must provide a definitive ruling declaring that the fair use exception to copyright infringement encompasses a digital archive making periodic copies of publicly accessible websites. This exception provides that the use of a copyrighted work will not be considered an infringing use if it is done for certain purposes or, if after consideration of several factors, the use is found to further the purpose of making copyrighted works available for use by the public.6
Part I of this Comment explores the background of the Internet Archive. In Part IA, the Internet Archive's creation and mission are explained. The first section of Part IA describes the historical development and purpose of the Wayback Machine. Section two discusses the pertinent issues of a copyright owner who does not want a website archived by the Wayback Machine. Section three delves into how users have employed the Wayback Machine and the legal consequences of those uses. The fourth section explains the issues in a lawsuit currently pending before the federal District Court in the Eastern District of Pennsylvania and describes how the issues further highlight why courts must decide whether fair use protects digital archives.
In Part IB, the fair use exception is fully explained. Section one provides a historical perspective on copyright law and the fair use doctrine. The second section describes the statutory law with a detailed look at the factors of fair use. In conclusion to Part IB, section three reviews the major, relevant case law developments that address fair use.
Part II presents the analysis of possible results and the implications associated with courts declaring a digital archive's activities to be within the realm of fair use. Parts IIA through IID analyze the Internet Archive's activities in terms of the four statutory factors, respectively. The case law interpretations of these factors are woven into the analyses as well as thePage 1023 individual facts that make the Internet Archive the perfect example for looking at digital archives.7
The Internet Archive is a website that catalogues, or archives, almost the entire World Wide Web.8 In conjunction with the Library of Congress, the Smithsonian, and the Alexa Internet,9 the Internet Archive is working to preserve periodically obtained copies of publicly accessible10 websites as they appear over time. It is also making a record of the Internet and other items such as movies, books, live concerts, and freeware through the visual images, print, audio, and software collections available on the site.11To make this archive of web pages available, the Internet Archive provides a search tool on its website called the Wayback Machine.12 Aptly, this search tool is named after a fictional invention that seeks the truth of history, not merely the version proliferated by spin doctors. It is named after the "Rocky and Bullwinkle" cartoon's time-travel machine in which the characters "Sherman and Peabody would use Peabody's 'WABAC machine' (pronounced 'way-back' . . . ) to go back in time to discover the real story behind historical events"13 (albeit the real story may go comically awry).14 Users of this free service can search previous versionsPage 1024 of web pages, including those which are no longer supported or which no longer exist.15 By simply typing a website address, or Uniform Resource Locator (URL),16 into the Wayback Machine's text box, a user can access one of "85 billion web pages archived from 1996 to a few months ago."17The Wayback Machine contains almost two petabytes of data, which is more information than that available in the Library of Congress.18However, keyword searching is not available at this time.19
Creating the archive requires the Internet Archive to amass digital copies of web pages over a period of time, which is primarily accomplished through donations of such data.20 The Internet Archive specifically uses the Wayback Machine as the database, or "three dimensional index," for storing the donated digital copies of web pages.21This donated digital data comes from The Alexa Internet,22 a company that was begun with the purpose of gathering information about users visiting its site and then providing the users with other links related to their interests.23 The Alexa Internet designed and built the Wayback Machine database, in conjunction with the Internet Archive, and continues to donate "crawls" of the Web.24
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Some copyright owners, usually website owners, prefer that the Wayback Machine not archive their sites.25 The Internet Archive addresses these situations by providing a variety of options to the copyright owner.26As a general matter, "[t]he Internet Archive is not interested in preserving or offering access to Web sites or other Internet documents of persons who do not want their materials in the collection."27 As a first way of showing its commitment to exclusion, the Internet Archive posts a copyright policy.28 Second, an exclusion policy link is also provided on the website.29 Third, directions are offered on how to exclude a website from being archived.30 Fourth, there is always the option of emailing the Internet Archive and directly communicating the desire to opt out.31 Each of these systems, which will be examined in turn, is designed to eliminate a copyright owner's material from being accessible to the public from the Wayback Machine site.
The Internet Archive posts a copyright policy in at least two places on the website.32 The policy includes introductory remarks acknowledging the rights afforded intellectual property owners, after which a disclaimer is displayed granting the Internet Archive discretion to remove apparently infringing content.33 As further evidence of its recognition of and commitment to copyright law principles, the Internet Archive designates a Copyright Agent to handle infringement claims.34 Any copyright owner who believes a copyright violation has occurred can contact the Copyright Agent and provide basic contact information, the location within the Internet Archive of the alleged infringing material, and a statement "under penalty of perjury" that accurate information has been provided and thatPage 1026 the complainant is the owner of the copyright or is otherwise authorized to defend the alleged infringement.35 When the Copyright Agent receives such a complaint, the allegedly infringing material is presumably investigated, as the policy indicates the Internet Archive "may, in appropriate circumstances and at its discretion, remove certain content or disable access to content that appears to infringe the copyright or other intellectual property rights of others."36
A link to the Internet Archive's exclusion policy is also posted on the website.37 After clicking on this link, the user is redirected to another website where a list of anticipated removal requests and the sources from which they might originate are listed.38 Basically, the Internet Archive is predicting who will send removal requests and how to handle such requests.39 The first potential source of a removal request, the owner of a private (non-governmental) website, addresses the fair use inquiry.40 The policy for handling this request states, "Archivists should provide a 'self-service' approach site owners can use to remove their materials based on the use of the robots.txt standard."41 The other six sources delve into fringe issues, such as a third party's removal request and how to handle verifying the authority of the third party.42 This list of sources and responses...
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