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

The Wayback Machine and More From Brewster Kahle

Really nice 2-page spread on Brewster Kahle, “The internet’s librarian,”  in this week’s issue of The Economist.

The Economist

March 7th – 13th 2009

Technology Quarterly insert

Brain scan

The internet’s librarian

Brewster Kahle wants to create a free, online collection of human knowledge.  It sounds impossibly idealistic — but he is making progress

It is easy to dismiss Mr. Kahle as an idealist, but he has an impressive record of getting things done.

I have used the Wayback machine — i.e., The Internet Archive — to find needed documents that were not otherwise available online anymore.  And apparently I’m not the only one:

The most famous part of the archive is the Wayback Machine (its name inspired by the WABAC machine in the 50-year-old television cartoon featuring Rocky and Bullwinkle). This online attic of digital memorabilia stores copies of internet sites . . . Paul Courant, the dean of libraries at the University of Michigan, equates what the archive does for the internet with what the British Museum did for the British empire. . . . The Wayback Machine “gives us access to what people were producing at different points in time,” he says.  Evidentially this is of more than just academic interest: the site gets 500 page requests per second.

The article also discusses “Mr. Kahle’s wider goal:

to build the world’s largest digital library.  He has recruited 135 libraries worldwide to openlibrary.org, the aim of which is to create a catalogue of every book ever published, with links to its full text where available. . . .

The article notes that “this activist for online privacy is also a staunch supporter of openness” and details efforts and litigation Mr. Kahle has been involved with.