Best Evidence and the Wayback Machine: A Workable Authentication Standard for Archived Internet Evidence

“Note, Best Evidence and the Wayback Machine: A Workable Authentication Standard for Archived Internet Evidence”

Fordham Law Review, Forthcoming

DEBORAH R. ELTGROTH, Fordham University – Fordham Law Review

This Note addresses the use of archived Internet content obtained via the Wayback Machine, a service provided by the Internet Archive that accesses the largest online digital collection of archived Web pages in the world. Given the dynamic nature of the World Wide Web, Internet content is constantly changed, amended, and removed. As a result, interim versions of Web pages have limited life spans. The Internet Archive indexes and stores Web pages to allow researchers to access discarded or since-altered versions. In the legal profession, archived Web pages have become an increasingly helpful form of proof. Intellectual property enforcers have recognized the value of the Internet Archive as a tool for tracking down infringers, but evidence from the Internet Archive has rarely been admitted at trial. This Note surveys the handful of judicial opinions and orders that comment on the admission of Internet Archive evidence and explores the conflict underlying these approaches. As an alternative to the courses they have taken, this Note urges courts to treat the introduction of archived Web pages as implicating a best evidence issue in addition to an authentication question. Under this approach, courts would decide using evidence sufficient to the purpose, but not necessarily admissible at trial, whether the archived page qualifies as a ‘duplicate’ of a page that once appeared on the Web. Beyond that, courts would apply authentication standards already developed to decide whether a reasonable jury could find, based only on admissible evidence, whether proffered evidence accurately represents the page stored on the Internet Archive server and, if necessary, whether the original page accurately represented material placed on the originating site by the site’s owner or operator. With this additional step, reliable evidence from the Wayback Machine can become as easily admitted as any other Internet-derived proof.

 

Source:  LSN Intellectual Property Law Vol. 2 No. 109,  09/30/2009

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