The Internet Archive’s Wayback Machine archives copies of websites every few weeks or months, going back to 1996. The Wayback Machine currently has almost 500 billion archived webpages. By entering a website into the Wayback Machine, a user can see what archived copies of the website are available and then view those historical copies. For example, this link brings you to a copy of the Trademark & Copyright Law blog as it existed on April 28, 2010, shortly after its founding. Another example is Enron’s website pre and post-2001: Enron’s March 2, 2000 website boasts of “Endless Possibilities,” while its August 2, 2002 website notifies visitors of its bankruptcy and restructuring.
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.
Grounds for Admissibility
At the end of last month, the Court granted, on two independent grounds, the plaintiff’s motion in limine to admit the screenshots. First, the testimony of the Internet Archive employee was sufficient to authenticate the screenshots because the employee had personal knowledge of the content of the archive. The court rejected defendant’s argument that the screenshots are unreliable because the Wayback Machine does not capture everything that was on the site (for example, sometimes images are omitted, or not all pages of a website are updated at once). The court stated:
[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.
Second, the court held that regardless of whether plaintiff sufficiently authenticated the screenshots, the court can take judicial notice of the historical content of defendant’s website. The court noted that the issue here is the content of the defendant’s own website, and the defendant has not explained why the Wayback Machine’s archive of its website is unreliable or inaccurate. Accordingly, under Federal Rule of Evidence 201, the historical content of defendant’s website “can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”
The court had previously rejected hearsay arguments against the introduction of the screenshots on the grounds that (1) they are not being offered for the truth of the statements contained on the webpages but to show that the webpages contained plaintiff’s trademark; and (2) in any event, they are a party admission.
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