Keeper of Expired Web Pages Is Sued
The Internet Archive was created in 1996 as the institutional memory of the online world, storing snapshots of ever-changing Web sites and collecting other multimedia artifacts. Now the nonprofit archive is on the defensive in a legal case that represents a strange turn in the debate over copyrights in the digital age.Beyond its utility for Internet historians, the Web page database, searchable with a form called the Wayback Machine, is also routinely used by intellectual property lawyers to help learn, for example, when and how a trademark might have been historically used or violated.
That is what brought the Philadelphia law firm of Harding Earley Follmer & Frailey to the Wayback Machine two years ago. The firm was defending Health Advocate, a company in suburban Philadelphia that helps patients resolve health care and insurance disputes, against a trademark action brought by a similarly named competitor.
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.
Details here from the New York Times. There's a discussion about the case going on at Slashdot. (via How Appealing)
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Internet's Way-Back Machine may help bring the truth to light.
An Internet service may save a consumer advocate from a lawsuit that claims more than $2 million in damages.
Gloria Wolk of Laguna Hills, California, is a defendant in a defamation lawsuit filed to stop her from publishing information about the controversial viatical and life settlement industry. If successful, the lawsuit also could prevent her from assisting attorneys who represent victims of this industry.
“It’s a classic SLAPP lawsuit,” said the grandmother of seven. A SLAPP suit is a lawsuit intended to stifle the First Amendment rights of a critic. There are two other conditions that must be met for a lawsuit to be considered a SLAPP: The critic addresses issues that concern a wide segment of the public, and the speech or publication is widely available. In Wolk’s case the public issue was viatical settlements. The public forum that got her in trouble was the Internet.
In 1998 Wolk began to publish a Web site filled with more than 200 pages of information that warned the public about the risks of dealing with viatical settlement companies. Viatical companies bought life insurance policies from people who were considered to be near death, then resold the policies as investments to the public. There was no regulation of the investment, and few states did anything to protect patients who sold their policies for cash. Wolk became an advocate for abused patients and defrauded investors, most of whom were elderly.
Wolk’s Web site, which noted legal actions taken against many companies, included a statement warning patients to be careful when dealing with a San Francisco-based viatical broker. Immediately after the warning appeared the president of that company sent Wolk a letter denying everything. Wolk told him she had proof. A few months later an attorney, writing on behalf of the company, protested with the same arguments. Wolk sent the same reply. The third effort to stop Wolk was in 2001, when another attorney filed a defamation suit against her and the web host service that enables her Web site to be on the Internet. (Wilbanks v. Wolk, Case No. 322652, San Francisco Superior Court).
Had Wolk’s lawyers used these letters, it would have shown that the lawsuit was barred by the statute of limitations. Had the attorneys used the proof Wolk gave them, it would have shown she didn’t defame the broker. Had the attorneys presented the court with copies of the actual Web site pages, Wilbanks’ sworn statements would not have convinced an appeals court that Wolk published two sentences that damaged him: “Wilbanks is incompetent,” and “Wilbanks is unethical.” Lacking proof of anything from either party, the appeals court ruled on the basis of sworn statements, concluding that Wolk “probably” defamed the broker.
California has a very strong anti-SLAPP law. It is intended to protect advocates like Wolk, to spare them the time and huge expense of defending against a meritless lawsuit. If the anti-SLAPP law applies to the lawsuit and is used correctly by a defendant’s attorney, the case is thrown out of court quickly and the SLAPP filer is ordered to pay the defendant’s legal expenses.
That didn’t happen with Wolk. Now Wolk is back in court, preparing for trial to begin on August 29. She has spent every last dollar of savings and retirement funds on legal fees and now plans to sell her home in order to bring the case to a jury so that, finally, the truth will come out.
Here’s where the Internet, which shot in her the foot, may give her a workable prosthetic.
Over the years the Internet Way-Back Machine, a San Francisco nonprofit, preserved millions of pages from many Web sites. Anyone who goes to their Web site (www.archive.org) and searches www.Viatical-Expert.net will find proof that Wolk never published the two sentences that convinced the appeals court to rule against her.
Wolk wants the jury that decides her fate to see the pages from archive.org. She hopes these pages will help the jury understand that the lawsuit was filed without cause and continued to plague her for four more years, without cause.
Her adversary does not want the jury nor anyone else to see the pages at archive.org. He offered to settle the case if she had the pages removed from archive.org.
“He wants his lies against me to be the only information available to the public,” said Wolk. “And I need the truth to be a matter of record. Otherwise, it will appear that I am not a reliable source of information.”
Wolk sells information—to the public and to attorney. She has no other means to support herself. If she is silenced by this lawsuit, she will have no home, no car, no ability to pay medical and dental expenses, and she no longer will be able to help people victimized by the viatical and life settlement industry. “What drives me, what gives me energy, is being able to make a difference in the lives of other people,” Wolk said. More than a roof over her head she needs to lead a meaningful life.
Wolk’s loss won’t be hers alone. If she is silenced, the public who needs information and needs an advocate like Gloria Wolk will lose. It’s not likely that anyone will pick up her baton, if the courts send the message that it is dangerous to criticize the viatical and life settlements industry.
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For more information
Contact Gloria Wolk ggwolk@Viatical-Expert.net
Posted by: Gloria Wolk | July 15, 2005 4:05 PM