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Researching the Past; Blocking Access and Bad Faith

The Panel in Rba Edipresse, S.L. v. Brendhan Hight / MDNH Inc., D2009-1580 (WIPO March 2, 2010) (discussed a few days ago on another subject) reminded us that “the ‘robots.txt doctrine’ that bad faith may be found if access to the archive of the historical contents of a website is blocked by a respondent after initiation of a domain name dispute” is not applicable where the respondent’s blocking of access preceded the dispute. “Hence, whatever view one might take as to whether such a doctrine is appropriate, having regard to the justifications for archive blocking advanced by the Respondent (and the Panel finds it unnecessary to express a view), that doctrine cannot apply in this case.”

“Robots.txt” is a program that crawls websites for the Internet Archive, more familiarly known as the Wayback Machine (“IA”). IA is accessible on the Internet at http://www.archive.org. An overview of IA’s mission is described by the Panel in The iFranchise Group v. Jay Bean / MDNH, Inc. / Moniker Privacy Services [23658], D2007-1438 (WIPO December 18, 2007) (unanimous 3-member panel). It was founded in 1996. “Like a paper library … [it] provide[s] free access to researchers, historians, scholars, and the general public, of historical web pages.” It started to build a better-rounded collection in late 1999 by using Alexa to crawl the web. With its Wayback Machine – a device that displays the website as it looked on a given date – anyone can literally have a window on the past use of the domain name. The Panel in iFrancise held that

It is the opinion of the Panel that absent convincing justification for the employment of robots.txt in a given case, the use of the device may be considered as an attempt by the domain name owner and operator to block access by the panel to relevant evidence. In such a case, it is the Panel’s view that a panel is entitled to assume that reasonable factual allegations that a complainant has made as to the historical use of the web site to which the domain name at issue resolves are true and that the use of robots.txt in the particular case may be considered as an indicia of bad faith.

“Alexa respects robots.txt instructions [not to crawl a particular site], and even does so retroactively, thereby preventing the researcher from discovering targeted pages.” The antidote to such instructions is for the complainant to argue and the Panel to draw a negative inference in favor of the complainant’s “reasonable factual allegations … as to the historical use of the web site to which the domain name at issue resolves … and that the use of robots.txt in the particular case may be considered as an indicia of bad faith,” The iFranchise Group. There is another service that captures ‘historical snapshots’, but in contrast to IA DomainTools.com stores images of the home pages without following links or storing text or site code. Note: IA is a free, DomainTools.com a subscription service.

However, domain name registrants may legitimately block collection of website information. The question is whether blocking access to page content is intended to mask infringement of the complainant’s right or undertaken for a legitimate business purpose. In SCOLA v. Brian Wick d/b/a CheapYellowPages.com, FA0711001115109 (Nat. Arb. Forum February 1, 2008) the Respondent presented evidence from the Wayback Machine that his predecessor had used the disputed domain name in good faith, but blocked access from its acquisition. That suggested to the Panel concealment of evidence.

In contrast, the Respondent in Rba Edipresse identified five reasons for legitimately blocking access as a business practice for operators of pay-per-click websites. The Panel sets them forth in full “for the benefit of other panels in future cases,” intended I think to counter the view that blocking is ipso facto grounds for finding bad faith. According to the Respondent, allowing access 1) imposes a cost in bandwidth by taxing the respondent’s server capacity for which it has to pay “without any return of revenue to the Respondent”; 2) and 3) promotes click fraud and related scams associated with archiving — the Respondent explains that “[b]ecause of concerns of click fraud and related scams, the confidential contracts between PPC feed providers and publishers forbid archiving, reverse engineering, and copyright violation inherent in allowing third party content storage of current ads”; 4) creates confusion with respect to parked pages; and 5) provides inaccurate information about the geographic distribution of use because the archived pages show only what was visible in one location.

The Respondent points out that DomainTools.com avoids these problems because it stores images of the home pages without following links or storing text or site code. Bad faith rests on timing, whether before or after notice of the dispute. If after and there being no explanation as in Scola an inference of bad faith is more likely. In Rba Edipress, the Respondent’s blocking of access was a considered business policy that preceded notice.

Gerald M. Levine <udrpcommentaries.com>

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