Citation Edit

Internet Archive v. Shell, 505 F.Supp.2d 755 (D. Colo. 2007) (full-text).

Factual Background Edit

Plaintiff, Internet Archive, is a non-profit organization that is devoted to the preservation of all websites, documents and other information contained on the Internet. In order to aid in this process, Internet Archive employs technology known as the Wayback Machine. The Wayback Machine systematically browses the entire World Wide Web, reproduces the content from websites and places them in the Internet Archive. Neither the Wayback Machine nor Internet Archive seeks permission of website owners prior to reproducing website content, however, the Internet Archive provides instructions for website owners on how to remove material from the archive. Additionally, the Internet Archive removes material upon the request of the website owner.

Between May 1999 and October 2004, the Wayback Machine accessed and reproduced the defendant’s website ( approximately 87 times. The defendant’s website was registered with the U.S. Copyright Office and included a copyright notice, which was accessed by clicking on an icon located on the defendant’s website. The copyright notice stated: “If you copy or distribute anything on this site — You are entering into a contract.” The defendant’s “contract” included charging the user $5,000.00 for each individual page copied "in advance of printing." Additionally, the defendant required that any party taking part in "unauthorized use" of the website pay $250,000.00 plus a fee of $50,000.00 per each occurrence for failure to prepay for the website's use.

When the defendant discovered that Profane Justice had been reproduced and archived by Internet Archive, she immediately sent an email requesting that all content from her website be removed. In addition, the defendant demanded payment of $100,000.00 and threatened to sue Internet Archive if it failed to pay. Internet Archive immediately removed all content requested by the defendant but refused to pay the $100,000.00.

Trial Court Proceedings Edit

In anticipation of a lawsuit, Internet Archive filed a declaratory judgment action, seeking judicial determination that it did not violated the defendant’s copyright.

The defendant filed an answer shortly thereafter. The answer included counterclaims against Internet Archive for copyright infringement, conversion, civil theft, breach of contract and racketeering under the Racketeering Influenced and Corrupt Organizations Act (RICO) and Colorado Organized Crime Control Act (COCCA).

Internet Archive then filed a motion to dismiss Shell’s counterclaims of conversion, civil theft, breach of contract and RICO under Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim. The district court granted plaintiff’s 12(b)(6) motion in part, and denied it in part. The court determined that defendant’s allegations were insufficient to sustain the claims of conversion, civil theft and racketeering under RICO and COCCA.

On defendant’s conversion claim, the court reasoned that the complaint failed to allege that Internet Archive exercised dominion or control over the website. Since control, an essential element of the crime of conversion, was absent, the claim could not stand. Likewise, the court concluded that the defendant’s allegations of civil theft failed due to the inability of the defendant to show that Internet Archive’s permanent deprivation of the use of her property. The court noted that the defendant was never deprived, rather she continued to operate her website during the period of time in which the copies of her website were made and stored in the Wayback Machine.

Additionally, the district court concluded that the defendant’s complaint failed to allege that the plaintiff was involved in a criminal enterprise. Although the complaint established that the plaintiff collaborated with an outside organization through donations, an “ongoing organization with a decision-making framework for controlling the group” was absent. Therefore, the defendant’s complaint failed the criminal “enterprise” element required by both the RICO statute and COCCA. As a result, both claims were dismissed under 12(b)(6).

The court found that the breach of contract and the criminal copyright infringement under RICO claims should not be dismissed. In analyzing the [[breach of contract] claim, the court determined that the defendant had sufficiently alleged the existence of a contract, a breach of that contract and resulting damages. Although Internet Archive’s argument that “no human being from Internet Archive actually knew of the terms of use” may absolve the company of liability, the defendant had sufficiently alleged all of the elements for a breach of contract claim.

Further, the court held that the defendant had sufficiently alleged a claim for criminal copyright infringement under RICO. The court looked at the defendant's complaint, which alleged that the Internet Archive derived a direct financial benefit from the material it copied through advertising revenue. Since criminal copyright infringement requires an infringing act, which was presumed by use of the Wayback Machine, as well as a certain degree of "commercial advantage or private financial gain," the defendant had sufficiently pleaded the claim.