The Eastern District of Pennsylvania helps keep the DMCA and the Computer Fraud and Abuse Act from continuing to be misused.

The DMCA and the Computer Fraud and Abuse Act are two of the most widely misused Internet related laws.  From doctors trying to use the DMCA to shut down a website containing photos of the website owner’s body portraying potential medical malpractice to websites containing “ Terms of Use” which prohibit competitors from even viewing the website, these Internet Laws are being abused.


The latest incident occurred when a law firm was accused of violating the DMCA and the Computer Fraud and Abuse Act when it used the “Way Back Machine” to recover old Web pages of its client’s opposing party.  Obviously, the firm’s intent was to use the pages to defend its client.  The pages were made available only to other lawyers at the law firm.  At the time the law firm retrieved the web pages, there no protective measures in regard to the archived pages. 


Judge Kelly put a stop to this abuse of Cyber laws.  He stated that “It would be an absurd result if an attorney defending a client against charges of trademark and copyright infringement was not allowed to view and copy publicly available material, especially material that his client was alleged to have infringed.”  Judge Kelly also added that the law firm “was justified in viewing and printing as many versions of the website as necessary to show that the material had been made public. More importantly . . .  the material was relevant evidence in the Underlying Litigation, and the firm had a duty to preserve relevant evidence.”


I am sure that the abusive use of the DMCA and the Computer Fraud and Abuse Act will continue, but in a federal court in Pennsylvania, Judge Kelly made the right decision. The text of the opinion can be found at: http://www.paed.uscourts.gov/documents/opinions/07D0852P.pdf

Cyber Lawyer, Domingo J. Rivera, is an attorney specialized in Internet Law, handling cases throughout the United States.

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