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

Wed, May 18th 2016 2:09pm — Tim Cushing

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

19 Comments

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I.T. Guy, 18 May 2016 @ 2:24pm

"why pages from his own site shouldn't be considered as evidence of alleged infringement. "

Or... a judge could tell them to produce copies of the old sites and hold them in contempt indefinitely until they produce them.
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alanbleiweiss (profile), 18 May 2016 @ 2:39pm

Using research I've performed that includes the Internet Archive and DomainTools, I've helped clients successfully litigate smaller cases - good to see this is getting more weight at the federal level.
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Anonymous Coward, 18 May 2016 @ 3:00pm

Another flaw with copy protection laws is that they allow for the destruction of evidence.
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- 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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  - Anonymous Coward, 18 May 2016 @ 8:12pm
    
    Re: Re:
    Copy protection laws enable historical erasing and rewriting and that's what they are often used for. It's a tragic disaster.
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  - Anonymous Coward, 20 May 2016 @ 7:55am
    
    Re: Re:
    What would happen if archive.org lost their DMCA exemption? It has to be renewed on a regular basis, right?
    I don't think there's any exemption. They remove pages on request, and don't crawl the site if robots.txt doesn't allow it. They even remove old data if a new robots.txt doesn't allow access—but they likely don't delete the data, and a lawyer could subpeona it.
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Anonymous Coward, 18 May 2016 @ 7:36pm

Is litigation really something the Internet Archive / Wayback Machine wants to be involved in? It opens up a whole can of worms. Employees being subpoenaed to appear in court? Employees or the company being targeted because of the pages they've archived? What if they find illegal or defamatory material - does someone have to action on or report it? What if someone else finds it - can the company be sued?

No, it's better the IA / WM remain fully neutral and not get involved in legal matters. Put up a broad disclaimer "Pages are archived as they appeared on the date of archival blah blah... We do not review content... We will not testify in court as to authenticity." The risks of getting involved in legal matters are too great compared to the benefits of the IA / WM.
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- alanbleiweiss (profile), 18 May 2016 @ 8:27pm
  
  What are the risks?
  I don't see there being significant risks - they're already a neutral aggregator.
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  - Anonymous Coward, 19 May 2016 @ 1:41am
    
    Re: What are the risks?
    @alanbleiweiss: I'm sure that to you, IA/WM is this great free tool that does part of your job for you. Good for you. But realize that they could open themselves up to litigation by not being neutral.
    
    Content obtained from IA/WM should only be admissible as evidence if the justice system allows it to be admissible as evidence. IA/WM should never have to vouch for the accuracy and historicity of that content.
    
    Another thing, if the TTIP passes the "right" to be forgotten might be imported to the U.S. That would negatively affect IA / WM. Unless of course Congress would be willing to extend them an exception for archiving in addition to the one for copying.
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    - Anonymous Coward, 19 May 2016 @ 6:09am
      
      Re: Re: What are the risks?
      You're strangely skipping a step. How is a judge supposed to fairly determine the admissibility of the evidence without testimony?
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    - nasch (profile), 19 May 2016 @ 6:38am
      
      Re: Re: What are the risks?
      But realize that they could open themselves up to litigation by not being neutral.
      
      Why would they do that? They were neutral in this case for example. The employee's testimony was not that there was trademark infringement, it was that yes in fact these pages were archived from this source on that date. How does that open them up to any liability?
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      - Anonymous Coward, 21 Apr 2019 @ 3:24pm
        
        Re: Re: Re: What are the risks?
        It opens them to bartarary at worst really by those trying to shoot the messenger with frivolous lawsuits to try to silence them.
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    - PRMan, 19 May 2016 @ 12:35pm
      
      Re: Re: What are the risks?
      I used to work for a company that did stuff with GPS and my boss was in court all the time as a neutral witness explaining the accuracy of determining where somebody's car or truck was at any given time.
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kenreich, 19 May 2016 @ 9:52am

Re Risks
The only risk is getting into the business of providing testimony. There is a business model for this. If IA / WM wants to charge for providing testimony, set up a rate schedule and start taking orders. Where's the risk in providing neutral information about your core product (archived Internet) for a fee? It pads the bottom line without any interference in who you are or what you do.
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Paul (profile), 19 May 2016 @ 10:32am

Not so fast
The main issue with Archive.org is that it preserves the underlying hamlet and NOT the actual image. Thus html code that "calls" another file from another location will display whatever that file currently contains. An example is a d date code call.

A far better solution is screenshots.com which captures an actual static image of the homepage. While it doesn't capture other pages it does a great job of showing how tha ho epage actually appeared.

So, is archive.org evidence? Yes. BIT it is open to a great deal of attack in depending on what the archive actually contains and whether or not there have been changes.
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Euan Cochrane, 19 May 2016 @ 11:54am

Browser impact on evidence "purity"
I worry about this judgement as it doesn't take into account the impact of the browser's rendering of the content (as another comment notes). Fortunately there is a solution for this in things like old web today that allow rendering web archives (including those in The Internet Archive) from within an original/contemporary web browser. I hope over time the legal community will adopt such tools to ensure presentation of the most "pure"/authentic evidence.
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Michael Riedijk, 19 May 2016 @ 1:03pm

More solutions
There are many tools out that that can help lawfirms capture evidence from webpages, blogs and social media without the help of the Way Back Machine.

Take a look ate http://www.pagefreezer.com or this browser plugin: http://www.webpreserver.com

These tools not only capture a screenshot, but also the source code, HTTP metadata and legalize the captures with a digital signature and timestamp.
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Rekrul, 19 May 2016 @ 5:40pm

In my experience, the Wayback Machine is a giant block of digital Swiss cheese. It may say that it has pages from certain dates, but half the time you click on those dates and it says there's nothing there. Or you get the first page, but none of the links work.

I don't know if they fixed this, but a few years ago, I was trying to use it to view a site that was no longer online, but I couldn't because the current owner of the domain had set a robots.txt file to stop web crawlers. When I emailed Archive.org, I was told that there was no provision for displaying past versions of a site if the current version prevented archiving, even if the older versions of a site were owned by someone else and had vastly different content.
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Martin Löhnertz, 3 Jan 2017 @ 2:01pm

Would you consider icanprove.de as feasible?
Facing similar problems I created a service based on an online remote controlled browser. Test it at http://www.icanprove.de
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