How is internet archiving legal, when it appears to violate many websites terms of use?

Question

Internet archiving services like the internet wayback machine work by rehosting content from other website. However, many websites in their term explicitly disallow people to frame their website or rehost their content. So my question is, how are internet archive websites allowed to work?

As a cursory search, I've found that a lot of websites have the phrase (or variants):

Under no circumstances may you “frame” the websites or any of their content or copy portions of the websites to a server, except as part of an Internet service provider’s incidental caching of pages.

Yet, many of the sites that have this phrase are archived on archive.org

My initial thoughts are that these websites don't have a problem with what archive.org is doing, so they don't pursue any legal action. However, it seems that archive.org is blatantly violating a huge number of websites terms. Although I have not legal experience, it seems that this could easily open themselves up to a class action lawsuit. Does anybody have any thoughts on this?

Relevant Questions

Rehosting website - This question mentions that rehosting websites violates copyright unless explicitly allowed.

Answer 1

Most of the major archiving platforms are nonprofit ventures with purposes that could fall within the fair-use exception to the Copyright Act. Archive.org, for instance, is for educational and archival purposes. Perma.cc, meanwhile, is for preserving legal history.

I don't know about Perma.cc, but Archive.org will take down pages just because you asked, so that also cuts in its favor.

Answer 2

Terms and conditions aren't necessarily binding

It's worth noting that while activities such as the Wayback Machine have had many legal issues, they're mostly centered on copyright, not regarding terms and conditions.

A key part of this is that terms and conditions are not law, and they're not binding contract to which you've somehow agreed. Quoting another relevant answer, "In the case of a web site, the owner of the web site is granting you a license, subject to certain terms, to access the web site and use it." You're free to not accept that license offer in which case you don't have their explicit permission to access that site. However, you don't necessarily need their permission to do so - the permission is useful because it protects you from the following two main legal claims:

• Copyright - it may be that this implied license in combination with T&C is the only thing that gives you the copyright owners' permission to copy that data. However, that's not a factor in fair use scenarios where copyright owner's permission isn't required, which is the main legal claim of internet archives (which sometimes gets contested). It doesn't matter whether the copyright holder clearly tells you "I don't allow this!!!" in person, in email, in a legal cease&desist letter or on the T&C section of their website, if the copyright law permits you to make and/or distribute these copies without their permission.
• "Hacking" laws like CFAA (Computer Fraud and Abuse Act) - it may be that violations of T&C get prosecuted by various laws designed to target hacking. However, that generally requires something worse than what internet archives are doing. Internet archives generally respect both 'robots.txt' standard to limit access to what websites don't want to be scraped, they generally accept takedown notices, and their mission makes it less likely for courts to consider that the activity is in bad faith. If someone like myself would "just" scrape the same sites for some commercial gain, and continue to do so after receiving explicit cease and desist notice, then a lawsuit would have a larger chance of succeeding - but even then likely not, see a HIQ Labs vs Linkedin court ruling and an article about it as an example where a company explicitly and intentionally scraped Linkedin data against their T&C for years but the court didn't consider that as a violation of CFAA.