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Internet Archive v. Suzanne Shell

505 F.Supp.2d 755, Civ. No. 06-cv-01726-LTB-CBS (D. Colo., Feb. 13, 2007)

Court Holds Act Of Copying Web Site’s Contents May Constitute Acceptance Of Site’s Onerous Terms Of Use

Court allows pro se litigant to proceed with breach of contract claims against the Internet Archive, operator of the Way Back Machine, arising out of the Internet Archive's reproduction and display of historical versions of defendant's website without her consent.  Defendant alleged that such copying of her site constituted an acceptance of the site's terms of use, which require the payment of exorbitant fees for such copying, and even greater amounts as liquidated damages should the copier fail to pay the required copying fees.  The court denied plaintiff's motion to dismiss this claim, holding the counterclaims stated a viable cause of action for breach of contract.  In reaching this result, the court noted it could not determine if the Internet Archive knew at the time it copied defendant's site that that act constituted an acceptance of the site's terms of use.  The court could not resolve that question on the instant motion because the record before it was unclear both as to the manner in which such terms of use were displayed on defendant's site, as well as to whether Internet Archive received any notice thereof, given  its claim to only have accessed the site via a web crawler, and not via an individual.

The Court did dismiss so much of defendant's counterclaims that advanced claims for conversion, civil theft and RICO arising out of the same copying activities.  The Court dismissed the conversion claims both because Internet Archive did not exercise sufficient dominion over defendant's property merely by copying her site and displaying it online, and because Internet Archive removed defendant's site, and thereby ceased exercising any dominion over it, promptly upon her request.

The Internet Archive did not move to dismiss copyright infringement claims defendant asserted arising out of its copying activities, which will also go forward.

Internet Archive Copies Defendant’s Site And Includes It In Way Back Machine Without Her Permission

The Internet Archive is a not-for-profit organization that makes available to the public historical versions of websites as they appeared on the Internet at various points in time. The sites are located, and copied, by web crawlers operated by Internet Archive.      Internet Archive does not obtain the permission of the web site owners to post these historical versions of their sites on the web.  Internet Archive complies with requests by owners to remove their sites from its database, and advises site owners how to make such removal requests.

One of the many sites the Internet Archive copied and displayed in its database belonged to the defendant, Suzanne Shell ("Shell").  According to the defendant, Internet Archive made 87 copies of her site -, available on the Internet over the period May 1999 to October 2004.   Shell's site provides information and services to individuals accused of child abuse or neglect.

Defendant’s Site Contains Onerous Terms Of Use That Provide A User Accepts Them By The Act Of Copying All Or Any Portion Of The Site

Defendant's site contained a "copyright notice" that stated:

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 were quite onerous, and included a charge to the user of $5000 for each individual page copied, due "in advance of printing."  The contract also obligated the user to pay "$50,000 per each occurrence of failure to pre-pay" for use of the web site, "plus costs and triple damages," and granted defendant Shell a perfected security interest of $250,000 "per each occurrence of unauthorized use" of the website in various of the user's assets.  The Court held the manner in which this Copyright Notice, and the terms of use, were displayed on defendant's site, was unclear from the pleadings.  Defendant alleged that a notice of the contract appeared on every page of her site.  The Internet Archive, on the other hand, asserted in its motion to dismiss that a user did not receive notice of the site's terms and conditions until after it had copied portions of the site.  While an icon containing a link to the copyright notice appeared on her site, a user was not required to click-through the contract terms in order to obtain access to the site's content.

In December 2005, Shell requested that Internet Archive remove her site from its database, with which request Internet Archive complied.  Shell subsequently demanded a payment of $100,000 for plaintiff's unauthorized copying.  In response, plaintiff commenced this lawsuit, seeking a declaratory judgment that its activities did not infringe Shell's copyright.  Shell, proceeding pro se, counterclaimed, asserting that Internet Archive's copying of her site gave rise to claims of copyright infringement, conversion, civil theft and RICO.  Shell also asserted that the Internet Archive's activities breached the contract formed between the parties as a result of plaintiff's act of copying portions of defendant's site, which act purportedly constituted an acceptance of the site's terms and conditions of use.

Court Denies Internet Archive’s Motion To Dismiss Breach Of Contract Claims

Internet Archive moved to dismiss all of Shell's claims save for those of copyright infringement.  The court denied so much of Internet Archive's motion that sought dismissal of Shell's breach of contract claims.  The court held that Shell's pleadings stated a cause of action because they alleged that site visitors were advised of her contract terms on each page of her site, that Internet Archive accepted her terms by copying the site, and that Internet Archive breached those terms by failing to pay the required fees for use and/or copying.

Internet Archive argued that no contract was formed because it was unaware at the time it copied the site that the site's terms of use provided that such an act constituted the acceptance of those onerous terms. As such, urged Internet Archive, it could not be held to have entered into a contract, because it did not intend its act of copying to constitute an acceptance of such terms. 

The court rejected this argument, holding it rested on factual allegations outside of the counterclaim that were submitted in support of Internet Archive's motion, which allegations could not be considered on plaintiff's motion to dismiss.  This included evidence that the site failed to advise users of its terms of use until after they had copied portions of the site.  Similarly, the court could not consider Internet Archive's claim that it lacked the requisite notice because only a robot, and not a human, accessed the site on its behalf.

The court also, at this stage of the proceedings, rejected Internet Archive claims that the contract, given its onerous terms, was unconscionable and therefore unenforceable.  To establish such unconscionability in Colorado, held the court, a party must provide "evidence of some overreaching on the part of one of the parties such as that which results from an inequality of bargaining power or under other circumstances in which there is an absence of meaningful choice on the part of one of the parties, together with contract terms which are unreasonably favorable to that party."  Plaintiff could not, at this stage, provide sufficient evidence either of Internet Archive's lack of meaningful choice or of Shell's unequal, and superior, bargaining power.

Lastly, the court refused to dismiss the breach of contract claims on the ground that they were preempted by the Copyright Act. In reaching this result, the court followed the lead of numerous other courts which had similarly held that breach of contract claims, that add additional elements such as the failure to make a required payment for use of copyrighted materials, are not preempted by the Copyright Act.

Conversion Claim Dismissed Because Mere Copying And Display Of Defendant’s Site Does Not Constitute Sufficient Exercise Of Dominion Over Defendant’s Property

The court did grant the balance of Internet Archive's motion, and dismissed the conversion, civil theft and RICO claims advanced by Shell.

To establish a conversion claim in Colorado, the plaintiff must show a "distinct, unauthorized act of dominion or ownership exercised by one person over personal property belonging to another."  In addition, the plaintiff must also show "the owner's demand for the return of the property, and the controlling party's refusal to return it."

The court held Shell's conversion claim failed for several reasons.  First, as Internet Archive had taken the site down promptly upon Shell's request, there was no refusal to return property in response to an owner's demand therefore, an essential prerequisite for a conversion claim.

More importantly, held the court, Internet Archive's mere copying of Shell's site, and display thereof in its database, did not constitute the requisite exercise of dominion and control over defendant's property.  Importantly, noted the court, the defendant at all times owned and operated her own site.  Said the Court:

Shell has failed to allege facts showing that Internet Archive exercised dominion or control over her website, since Shell's complaint states explicitly that she continued to own and operate the website while it was archived on the Wayback machine.  Shell identifies no authority supporting the notion that copying documents is by itself enough of a deprivation of use to support conversion.  Conversely, numerous circuits have determined that it is not.  

Civil Theft And Rico Claims Dismissed

The Court also dismissed Shell's civil theft claims.  To establish such a claim, a plaintiff must show either that defendant intended to permanently deprive plaintiff of her property, or that defendant demanded consideration as a condition to restoring a thing of value to its owner.  The court held Shell could not make the requisite showing.  The complaint failed to allege that Internet Archive had permanently deprived Shell of use of her property as, at all times, Shell maintained ownership of her web site.  Nor could Shell establish that an actionable demand had been made, as Internet Archive had never asked her for money or other consideration.  Accordingly, the civil theft claim was dismissed.

Finally, the Court dismissed Shell's RICO claims, and their state law counterparts, for failure to allege the existence of a "racketeering enterprise" an essential element of such claims.

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