Hackers with Grey Hats

Two different sources alerted me to this story that is near and dear. That link to Shlashdot comes from my friend at the Sapiens Cogito blog. It appears that a law firm called Harding Earley Follmer & Frailey (no website I could find when I wrote this) is accused [UPDATE: meritlessly, it appears — see below — RDC] of pushing a little too hard to get some quality evidence in a trademark case by hacking the Internet Archive (the “Wayback Machine”). Says the story:

In preparing the case, representatives of Earley Follmer used the Wayback Machine to turn up old Web pages – some dating to 1999 – originally posted by the plaintiff, Healthcare Advocates of Philadelphia. Last week Healthcare Advocates sued both the Harding Earley firm and the Internet Archive, saying the access to its old Web pages, stored in the Internet Archive’s database, was unauthorized and illegal.

There’s a lot more detail in this story (registration required) from Law.com, sent to me by my former Gibney Anthony partner John Macaluso. The issue is a blocking protocol on Archive.com’s site which allows copyright owners and others to block access to the archived versions of their sites. The law firm is accused of hacking past that block, and the site is being sued itself for every IP crime on God’s green earth. From the Law.com story:

In an interview Tuesday, plaintiff’s attorney [Scott] Christie — a former federal prosecutor in the District of New Jersey where he headed the computer hacking and intellectual property section — said the case is about the right of Web site owners to protect their copyrighted material by insisting that archive sites block access.

As for the law firm he sued, Christie said their actions were “antithetical to the way lawyers are expected to conduct themselves,” and that, as specialists in the area of intellectual property, “they should have known better.”

In the opening paragraphs of the suit, the plaintiff’s lawyers contend there were “at least 92 separate acts of unauthorized electronic access” of Healthcare Advocates’ Web archives committed by “partners, associates, legal assistants and other employees of [the] Harding Earley law firm.”

John sent me the link with the title, “Hacker with a White Hat,” alluding to an article I co-authored a few years ago in Mealey’s Cyber Tech Litigation with then-associate Matthew Carlin (now counsel for the New York City Council) on whether and when it might be possible for a law firm to obtain a court order authorizing it to hack or shut down a grossly infringing website that refuses to submit to process — a common problem in the counterfeiting realm where John practices.

The problem Harding Earley is facing is a lot less common, though. Christie (a McCarter & English partner) sounds right. But of course, that’s just his take on the facts. Here’s Earley’s, from the Law.com piece:

In an interview, attorney John F.A. Earley III said “the case is meritless.”

Earley conceded that employees of his office had accessed the archives of Healthcare Advocates’ site, but insisted that none of them ever engaged in any “hacking.”

Instead, he said, they simply “followed the directions” on Internet Archive’s site. When an archive is labeled as “blocked,” he said, users are instructed to “try again.”

Earley said the allegations in the suit contradict themselves because Healthcare Advocates is accusing his firm of hacking into the site while at the same time accusing Internet Archive of failing to secure the site.

The decision to investigate Healthcare Advocates’ archives was part of a “routine” investigation, Earley said, because prior versions of a litigant’s Web site often contain valuable information.

In trademark and copyright cases, Earley said, defense lawyers often must investigate Web archives in order to establish key defenses.

In the case of Healthcare Advocates, he said, one of the issues was an allegation of theft of trade secrets — a claim that could be successfully defended by showing that the claimed secrets were published on the Internet and therefore could not be claimed as true secrets.

Earley predicted that the case would ultimately be dismissed because Healthcare Advocates will never be able to prove that Harding Earley’s employees did anything illegal.

“I consider it a hassle,” Earley said.

Ah, those precious facts. Very interesting case and a little peek into how IP litigators make the sausage.

UPDATE:  After two years of litigation, in 2007 plaintiff’s case was dismissed on summary judgment in a 40-page opinion (here), though the judge declined (don’t they always) to award fees to the defendants (opinion here).