Just read that a Colorado website owner is attempting to sue archive.org for accessing and making copy of her website.
Suzanne Shell attempted to sue on grounds of conversion, civil theft, breach of contract, and violations of the Racketeering Influence and Corrupt Organizations act and the Colorado Organized Crime Control Act.
The court ruling last month granted the Internet Archive’s motion to dismiss the charges, except for the breach of contract claim. If this breach of contract claim was to succeed, it would have a massive, wide-ranging impact on the Internet.
Suzanne Shell’s website http://www.profane-justice.org/ website allegedly contains (or contained) a copyright notice stating:
“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:“
(Disclaimer: the text above comes from another site, I have not viewed the statement on her site, as by her logic, viewing it is to agree to it, and I do not agree).
The terms include paying $5,000 for each individual page copied “in advance of printing”, along with other legal waffle including agreeing to pay “$50,000 per each occurrence of failure to pre-pay”,”plus costs and triple damages”, and agreeing to waive numerous defenses in any claims by Shell against the user.
The copyright notice is accessible through an icon/link on the website.
I think the first and foremost problem with this approach is that whenever a website is accessed, a “copy” is made. In the most common instance, a user using a web browser to access the site, the browser will copy the site’s HTML and associated images into the browser’s cache to speed up subsequent page loads. Therefore, there is no way to find out about the existence of the contract and its terms without having first broken them. That should clearly be unenforceable – she may as well try putting “by reading this contract, you indicate your acceptance of it”.
As a poster on the Slashdot story about this matter states,:
“I wonder if she has an answer machine? Call it, then replay a message including ‘If you don’t agree say ‘No’, otherwise we consider you agree to our contract’ [short silence] ‘Thank you. You have agreed to our terms and conditions. We will send you the invoice in…'”
Shell contents that Internet Archive formed a contract with her when it reproduced her website contents, and then breached this contract when it failed to pay her the prescribed fees. It is agreed that the parties did not form an explicit contract. Rather, Shell states that Internet Archive entered a contract with her by its conduct in reproducing her web materials.
Internet Archive argues that it never entered into a contract with Shell.
I would have to agree – there was no way for Internet Archive to have known that such a “contract” existed, or that Suzanne Shell did not want the contents of her website to be archived.
There is a well-known standard for requesting that your website contents should not be retrieved or stored by automated processes, known as the robots.txt file. Suzanne Shell did not have a robots.txt file on her website – if she had a correctly written robots.txt file present requesting that the materials on her site not be retrieved by automated processes (or “robots”) then Internet Archive would have complied with that request. In the absence of any such request made in the commonly known and used form, it is a reasonable assumption by Internet Archive that the material, having been made publically accessible on the Internet, was OK to archive.
The Internet Archive provides clear and simple information about how to prevent your site being included, and remove any existing copies of it, on their FAQ page and in more detail on their Removing documents from the Wayback Machine page.
On December 12 2005, Suzanne Shell emailed the Internet Archive asking them to remove the copies of her site from their archive, which they did. She also demanded payment of $100,000, which the Internet Archive of course did not agree to pay (quite correctly, in my opinion).
There has been a previous case in which the court found a website’s terms of use unenforceable where a user had unimpeded access to the website contents and could only become aware of the terms by clicking on a seperate icon located elsewhere on the website. (This case was Specht v. Netscape Communications Corp.
Internet Archive argues that while its “web browser” accessed Shell’s website multiple times, it was not in fact aware of the terms of use, and Shell has not alleged that it was.
If a court finds that Internet Archive was in breach of this contract which it could not have been reasonably expected to even know about until contacted by Suzanne Shell, this could have wide-ranging implications for the Internet.
As well as the Internet Archive and any other similar services, search engines such as Google necessarily access all websites they can find, and store a summary of the information for searching, and often also a full cached copy of the pages it retrieved. I’m sure that Suzanne Shell has used Google at least once. If she believes that what Internet Archive (and also Google) is illegal, then she has willingly used a service she believes commits illegal acts – where are her morals there then?
Her website currently carries a notice that her site is receiving a lot of traffic from “misguided people who think I’m terrible for suing the Internet Archive”, and claims that “Internet Archive sued me first”.
Er… from what I’ve read, Internet Archive did not sue her first, they filed a motion to protect themselves from the lawsuit which Suzanne Shell threatened them with if they did not pay her the fees she was attempting to extort from them.
However, she also states that she is receiving non-stop harrassment from phone calls and emails – I believe that is wrong, and most likely illegal. People, let the courts sort it out, harassing her will not help.
I really hope the courts throw this case out. She may well have a valid case if a human being had accessed her site and copied content from it, attempting to pass it off as their own without proper attribution, and refused to comply when she asked for the copy to be removed. The Internet Archive has not done that, does not intend to profit from archiving copies of websites, and always makes it very, very obvious where the material comes from, and provides easy and well-known methods to indicate that you do not wish for your site to be included.
Further reading:
Oh, and the small print of this post: “If you are accessing this blog post or its content in any form by any method and your name is “Suzanne Shell” or you are in any way connected with Suzanne Shell or her website, legal team, family, friends or any pets she may have, you agree to pay a fee of £500,000 UK pounds for each reading of the material. You may not copy or redistribute the material without further payment of a £750,000 redistribution fee for each copy of the material you choose to distribute, and agree to indemify the owner of this website, and every other user of the Internet, against any legal actions you may wish to take in the future”.
She’s a scammer. She has a degree in computer programming. Check this out:
http://www.ppld.org/communityconnections/authors/authors_Download.txt
145|Shell, Suzanne||14053 Eastonville Rd|Elbert|CO|80106||||Freelance Writer, Accountant, Upholsterer, Computer Programmer|BOOK:Profane Justice:A Comprehensive Guide to Asserting Your Parental Rights|Yes||Degree in Computer Programming & Accounting||Lived in Colorado Springs 1975-1978. Returned in 1982. Lived in Elbert County 1991-1996. Now live East of Black Forest.|Roswell, New Mexico|3-7-56
This woman has another website http://www.badadvocates.com and at the bottom of this site is says it is copyrighted and directs you to the website that is the subject of this lawsuit. Weird!
Statement issued by sHell’s righthand man. Is it time to show them how much you really like them?
Re: [FamilyRightsAdvocacyIMPROVEMENTProject] Is your group still with yahoo?
Hello Anita:
Suzanne is currently busy working on a project, so I will answer your question.
Suzanne’s site is down because it went over the allotted bandwidth usage. Suzanne has received 25,749,317 hits as of yesterday over a four day time period. Seems lots of people like her information, eh?
Kay
Re: [FamilyRightsAdvocacyIMPROVEMENTProject] They Gone…
Nothing happened. Everyone is working on their projects and getting things accomplished without publishing what we’re doing. Obviously, it’s working since profane justice has received so many hits.
Kay
.
Has anyone thought there might be some other “reason” for this lawsuit that copyright infringement? I see there is a post that references badadvocates.com. If that site is used to slander perceived “competition” to be able to force them out of “business” in order to form a “monopoly”, and profane justice is used to elevate it’s owner to help effectuate that “monopoly”, would it not be interesting to find out that badadvocates.com is owned by the same person and was started many years ago on the profane justice website, and that it was separated for the purpose of doing just that while keeping an “honest” front? She couldn’t very well “destroy her competition” on profane justice while advertising that hers is the ONLY organization that oversees all advocates across the country? Just a question, I don’t know anything about all that anti-trust stuff, but has that thought occurred to anyone? Now, if that same person turned over the ownership of the badadvocates.com to other parties and made a contract with them that allows her no say in what is posted, and no input in what is posted (like if she “crafted this agreement VERY carefully taking all these factors into consideration so she could honestly say her hands are tied. Darn. I guess pressuring ME isn’t going to work and could very likely backfire on anyone who tries it”), but allows her to “convince The Editors to alter their publication. THAT provision IS in the contract” if her conditions are met (i.e. if they should publicly retract everything they have written about her – ALL of it) would that not violate anti-trust laws?
Webmaster Settles With IA, Goes After Teenager
by Jason Lee Miller
One of the most bizarre Internet stories this year gets more bizarre. Internet Archive and Suzanne Shell have resolved their lawsuits against each other “amicably,” a word that follows words like “theft” and “racketeering” about as well as toothpaste follows orange juice. Next on her list: a 15-year-old Canadian jokester.
The case came to light last month when IA sought a court ruling that its WayBack Machine, which crawls and indexes copies of websites for historical purposes, wasn’t violating Shell’s copyrights.
Shell, who claimed IA’s web crawler entered into a contract while indexing, responded (quite reasonably, I might add) with a countersuit accusing IA of conversion, civil theft, breach of contract, and violations of both federal racketeering and Colorado organized crime legislation.
It was an important case, not necessarily because of its overall merit (all but one claim was immediately dismissed), but because the judge would have to consider whether or not spiders could enter a contract, and the world was listening.
Seems the judge won’t be able to make that declaration any time soon, as IA and Shell seem to have kissed and made up, issuing a joint statement about the settlement.
“Internet Archive has no interest in including materials in the Wayback Machine of persons who do not wish to have their Web content archived,” said an IA spokesperson in a statement.
“We recognize that Ms. Shell has a valid and enforceable copyright in her Web site and we regret that the inclusion of her Web site in the Wayback Machine resulted in this litigation. We are happy to have this case behind us.”
Shell seems to have gotten over it, too. “I respect the historical value of Internet Archive’s goal,” she said. “I never intended to interfere with that goal nor cause it any harm,” said Ms. Shell.
That’s interesting…could have sworn she sued them for theft, racketeering, and organized criminal activity. But if both say they settled it amicably, then who am I to question? Maybe IA just didn’t want to give the judge a chance to rule that web crawlers could actually enter a contract.
The statement ends with this gem:
Both parties sincerely regret any turmoil that the lawsuit may have caused for the other. Neither Internet Archive nor Ms. Shell condones any conduct which may have caused harm to either party arising out of the public attention to this lawsuit. The parties have not engaged in such conduct and request that the public response to the amicable resolution of this litigation be consistent with their wishes that no further harm or turmoil be caused to either party.
The turmoil they’re talking about may include 15-year-old Canadian and Digg.com user Jeff Veillette, who issued a kind of online challenge to Shell by framing her entire site, daring her to take action against him. While brazen, Shell claims it went well beyond framing.
If you visit her website, profane-justice.org (careful, you’re entering into a contract with an anti-child protective services activist), Shell posts Veillette’s name, home address, emails, and phone number after accusing him of hacking her website and setting up a pop-up spam campaign, viewable by 25 million people and defaming her. Shell says he expressly admitted to the hacking and spam campaign.
She includes blogger Billy Wiseman (a guy she really, really doesn’t like) in the accusation, listing his address as well. The FBI Computer Crime Center was contacted.
However, in an interview with WebProNews, hacking and spamming came as news to Veillette, who says his personal information listed is outdated (remember, at 15, he’s a minor — is it legal to post a minor’s information online? Maybe the FBI needs to give her a call). Jeff denies hacking her site or spamming anyone, but does admit to framing her site elsewhere, an act we reported when it happened.
As for Wiseman, Veillette says he had nothing to do with any of it. “Billy Wiseman wasn’t part of the attacks,” he said. “He was a blogger that was watching the Shell case and interviewed me.”
“What happened was I put the site in a frame. How that’s hacking I’ll never know.”
So Shell never lost control of her site?
“Nope,” said Veillette. “She ran out of bandwidth for her hosting.”
So, has the FBI been in touch?
“Nope. They probably laughed at this, too. What I’m wondering overall, though, is if she’s for supporting kids, why is she going out of her way to try and ruin a 15-year-old’s life?”
Good question, Jeff. I’m sure, though, she never meant any harm.
Financial terms of the settlement between Shell and Internet Archive were not disclosed.
Jason L. Miller is a staff writer for WebProNews covering technology and business