Action against the Internet Archive for breach of contract will proceed

The Internet Archive is doing a great service to humanity. It maintains a comprehensive record of all websites and employs a technology called the Wayback machine which automatically archives our cyber-culture for a later day. So, if you want to research what was posted under a certain URL in the past you can access that content stored in the Archive also after the content has been altered or removed. The process is automatic, but if the Archive receives an objection from the website operator (say, due to copyright concerns) it will remove the material from the Archive.

Suzanne Shell operates a website “devoted to providing information, services and other advocacy on behalf of individuals accused of child abuse or neglect” (this quotation is from the court decision I refer to below.) She placed a “Copyright Notice” on the website stating as follows:

"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…"

The “terms” are quite rigid. Among other things, she charges $5,000 for each page copied “in advance of printing” and a penalty of $50,000 “per each occurrence of failure to pre-pay." Shell has discovered that the Wayback machine was making records of her site and demanded removal of the content. Internet Archive complied, but this was not enough. Shell’s calculations showed that the Archive owns her $100,000 for past reproduction based on the “contract.” The dispute reached the U.S. District Court of Colorado and in an order from Feb. 13, 2007 the court dismissed most of Shell’s claims, except for the breach of contract cause of action. (Internet Archive v. Shell, 2007 WL 496680 (D.Colo.)) The court held:

[W]hile Internet Archive states that no human being from Internet Archive actually knew of the terms of use of Shell's website, Shell has alleged that Internet Archive expressly entered into a contract with Shell through her Copyright Notice, and that Internet Archive "possesses the capacity and authority to enter into contracts." Shell does not have to allege in her complaint every fact necessary to prove breach of contract ... While Internet Archive may be correct that the absence of human consent to this contract dooms Shell's claims, Shell has not had the opportunity to develop a factual record on this point. Shell has alleged the existence of a contract, breach and damages, which is sufficient to make out a claim for breach of contract.

So, litigation will continue and the Internet Archive might have to convince the court that a contract was not formed, is unconscionable or otherwise not binding. Should be interesting to follow. If the court upholds this contract (chances are greater than zero...) thousands of sites' operators will find incentive to do the same as Shell did. At stake is the future of the Internet Archive and the past of the Internet. Hope the court will see it this way too.