The Web and artificial intelligence have brought about some surreal, science fiction like questions. The most recent mind-bending concept is whether or not robots can enter into contracts – that is, is a Web crawler implicitly entering a contract posted on a website announcing copyright conditions?
A little while back, we explored the idea that RSS, as an automatic distribution agent, could imply permission to republish. But that involves two human parties, essentially, with a technical agent in between.
A court battle in Colorado, however, focuses on claims brought by Suzanne Shell against the Internet Archive’s Wayback Machine, which holds in searchable perpetuity pages that appear on the Web, for future historical reference.
Shell owns the website www.profane-justice.org, devoted to providing information and support for people who feel they’ve been unlawfully targeted by state agents (like police or child services organizations) or unfairly accused of child abuse.
A notice appears on the site stating that users copying or distributing the content on the site automatically agree to the terms of a contract. Failure to abide carries a fee of $5,000 per page copied; $250,000 per occurrence of unauthorized use, and a charge of $50,000 for each occurrence of failure to pay, plus costs and triple damages.
There was no mechanism in place on the site (such as in the robots.txt file) to prevent Internet Archive’s robot from scanning, copying, and storing the pages on Shell’s website. She discovered that the Wayback Machine had reproduced the contents of her website about 87 times in five years, “and displayed her entire website to the public daily during that period.”
Shell sued the company for conversion, civil theft, breach of contract, and violations of the Racketeering Influence and Corrupt Organizations Act (RICO) and the Colorado Organized Crime Control Act (COCCA).
As might be guessed, most of these claims were dismissed. But the breach of contract claim is still under consideration, awaiting more information. The question that will be decided, ultimately, is whether a web crawler that is not blocked by a website can legally be bound by a contract posted on the site.
The outcome of that question could also have important impact on Web-crawling and Internet copyright law itself. Search engines like Google have leaned on Fair Use principles when scouring the Web (and off-line libraries) for information. The Google Book Search project defenders have claimed that publishers can “opt out” of their network by letting Google know their desire to do so.
Of a similar vein, then, is Web crawling. Webmasters must opt-out of indexing via the robots.txt file, preventing the spider from crawling the site. If the courts continue to back search engines’ and other Internet companies’ right to copy and index at will, then the whole copyright system, by default, it would seem, goes opt-out, too.
Copyright law blogger John Ottaviani, on Eric Goldman‘s blog, goes into the Internet Archive v. Shell case and its implications in greater detail.
