The Technology & Marketing Law blog is discussing an interesting case where a woman put up some text on her website claiming that by visiting the website you were agreeing to the "contract" represented in the terms -- which included the fact that if you copied or distributed any content on the site, you agreed to pay large sums of money back to the woman. What happened next is probably pretty predictable. The Internet Archive archived a version of her page... and she tried to get money out of them. The Internet Archive went to court to have it declared that they did nothing wrong, and the woman countersued. Of course, she didn't just sue for breach of content, but copyright infringement, conversion, civil theft and racketeering (just to be safe). Racketeering certainly seems pretty extreme -- but then again so does claiming that by putting some simple text on your website anyone who visits the website (including automated web crawlers) enters into a binding contract. While the discussion focuses on whether or not a spider can enter into a clickwrap contract like that, an equally interesting question might be whether or not anyone can force people to give up their fair use rights. Right now, it seems that the courts are divided on that question -- though the argument that you cannot be forced to give up fair use rights makes a lot more sense based on the entire stated purpose of fair use rights. Still, the situation sounds quite similar to a discussion we had last year of a newspaper that tried to state on its website that fair use did not apply to its content. As for the question of whether or not something like the Internet Archive is fair use, at least one court has said that Google's cache is fair use, and that's quite similar to the Internet Archive. Either way, the case is still ongoing and should be interesting to follow. Hopefully the court will recognize that anyone who actually visits this woman's website actually violates that agreement by "making a copy" on their local hard drive -- which should help explain why the demand against copying is effectively meaningless.
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