Federal Judge Says Internet Archive's Wayback Machine A Perfectly Legitimate Source Of Evidence

from the score-one-for-the-internet's-unofficial-backup-system dept

Those of us who dwell on the internet already know the Internet Archive's "Wayback Machine" is a useful source of evidence. For one, it showed that the bogus non-disparagement clause KlearGear used to go after an unhappy customer wasn't even in place when the customer ordered the product that never arrived.

It's useful to have ways of preserving web pages the way they are when we come across them, rather than the way some people would prefer we remember them, after vanishing away troublesome posts, policies, etc. Archive.is performs the same function. Screenshots are also useful, although tougher to verify by third parties.

So, it's heartening to see a federal judge arrive at the same conclusion, as Stephen Bykowski of the Trademark and Copyright Law blog reports.

The potential uses of the Wayback Machine in IP litigation are powerful and diverse. Historical versions of an opposing party’s website could contain useful admissions or, in the case of patent disputes, invalidating prior art. Date-stamped websites can also contain proof of past infringing use of copyrighted or trademarked content.

The latter example is exactly what happened in the case Marten Transport v. PlatForm Advertising, an ongoing case in the District of Kansas. The plaintiff, a trucking company, brought a trademark infringement suit against the defendant, a truck driver job posting website, alleging unauthorized use of the plaintiff’s trademark on the defendant’s website. To prove the defendant’s use of the trademark, the plaintiff intended to introduce at trial screenshots of defendant’s website taken from the Wayback Machine, along with authenticating deposition testimony from an employee of the Internet Archive.
The defendant tried to argue that the Internet Archive's pages weren't admissible because the Wayback Machine doesn't capture everything on the page or update every page from a website on the same date. The judge, after receiving testimony from an Internet Archive employee, disagreed. He found the site to a credible source of preserved evidence -- not just because it captures (for the most part) sites as they were on relevant dates but, more importantly, it does nothing to alter the purity of the preserved evidence.
[T]he fact that the Wayback Machine doesn’t capture everything that was on those sites does not bear on whether the things that were captured were in fact on those sites. There is no suggestion or evidence … that the Wayback Machine ever adds material to sites.
Further, the judge noted that the archived pages were from the defendant's own website and he'd offered no explanation as to why pages from his own site shouldn't be considered as evidence of alleged infringement.

It's nice to know that what many of us have considered an independently-verifiable source of evidence is also acceptable in federal courts. It's more than just a handy way to preserve idiotic statements and potentially-illegal customer service policies. It's also a resource for litigants who might find their opponents performing digital cleanups after a visit from a process server.

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Filed Under: evidence, internet archive, wayback machine
Companies: internet archive


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  1. identicon
    Anonymous Coward, 18 May 2016 @ 4:07pm

    Re:

    What would happen if archive.org lost their DMCA exemption? It has to be renewed on a regular basis, right? So if one of those renewals was missed, the entire site would be one big copyright mess.

    I'm starting to find that the world wide web I remember from 2005 (only 10 years ago) for the most part no longer exists. Google searches no longer produce the results they used to. The only place I can find much of that material today is on archive.org. This is for historical and technical documentation, that now appears to have slid behind paywalls of people completely unassociated with the original production of the data. Sites that made liberal use of nofollow back in the day are now completely gone, other than as footnotes and dead links on other pages today.

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