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Federal Judge Says Internet Archive's Wayback Machine A Perfectly Legitimate Source Of Evidence 54

Tim Cushing, reporting for TechDirt (condensed): Those of us who dwell on the internet already know the Internet Archive's "Wayback Machine" is a useful source of evidence. 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.From the report: 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.From TechDirt: 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.
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Federal Judge Says Internet Archive's Wayback Machine A Perfectly Legitimate Source Of Evidence

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  • by Anonymous Coward

    this means archive.is isn't as good a source, since it heavily alters pages in the process of storing them.

    • by MrLint ( 519792 )

      I don't see that conclusion in this documentation of this ruling. Please be wary of armchair extrapolation.

    • "this means archive.is isn't as good a source, since it heavily alters pages in the process of storing them."

      And yet the same legal system still insists that we use faxed signatures instead of digital signatures.

      • Digital signatures (assuming you mean the cryptography ones rather than a .jpg of your handwriting) require that the user appropriately protect his or her private key. The average person doesn't know how to do that and even for those of us who do, it's inconvenient and error-prone. (I assume my personal PC hasn't been hacked, but I have no way to know for sure.) Digital signatures are therefore not really much more secure than paper+ink+analog phone line sort.

        Since they involve what the public and many judg

  • by Anonymous Coward on Thursday May 19, 2016 @12:13PM (#52142087)

    Just submit a DMCA request. Poof!

    • by sims 2 ( 994794 ) on Thursday May 19, 2016 @12:24PM (#52142141)

      even better park the domain with a robots.txt
      User-agent: *
      Disallow: /

      and archive.org will promptly nuke the site from its archive. :(

      • even better park the domain with a robots.txt User-agent: * Disallow: /

        and archive.org will promptly nuke the site from its archive. :(

        It will respect that retroactively?!

        • by TypoNAM ( 695420 )

          Unfortunately yes it does. :(

        • by sims 2 ( 994794 )

          IIRC yes it does. Hopefully I'm wrong on that but I don't think I am.

          • I was under the impression thst it stops saving new pages, and stops *displaying* old pages, but does not nuke the old pages from storage. If your robots.txt goes away in the future, the old pages come back.... Ay least, that was my understanding from long ago...

            • by sims 2 ( 994794 )

              I think your right on that. But I still don't like it as it means I can't trust that I will be able to find things in the archive at a later date if the domain changes hands.

              And domains that get parked tend to stay that way so access may be lost permanently. So it may be a distinction without a difference.

            • by Jim Hall ( 2985 )

              I was under the impression thst it stops saving new pages, and stops *displaying* old pages, but does not nuke the old pages from storage. If your robots.txt goes away in the future, the old pages come back.... Ay least, that was my understanding from long ago...

              I requested a site be deleted from Wayback a number of years ago. It was a test site, and I stupidly didn't put a "Disallow" robots.txt file on it. I recall that the overview you describe is correct: adding a "Disallow" robots.txt file removes the site from display. But to remove the site from their storage, I had to contact an admin. They asked me to demonstrate that I was the owner of the site (by copying my email message to them as a comment on the website's front page) then they deleted my website from

        • by ShaunC ( 203807 )

          It will respect that retroactively?!

          Yes, permanently; once a site is excluded there's apparently no way to get it back in the archive. I let a domain lapse a few years ago and someone else parked it for a year. I've had it back for several years with a permissive robots.txt but Wayback still says the site is excluded.

          • "I let a domain lapse a few years ago and someone else parked it for a year. I've had it back for several years with a permissive robots.txt but Wayback still says the site is excluded."

            Unless they changed the rules in the past two years, that is not their normal policy. Robots.txt is only supposed to affect the availability as long as robots.txt is up. It would suck if a temporary syntax error in robots.txt would purge a site forever. There is a case of a dispute where one party refused to remove robots.t

    • by JcMorin ( 930466 ) on Thursday May 19, 2016 @12:40PM (#52142235)
      Internet Archive has a DMCA Exemption http://archive.org/about/dmca.... [archive.org]
    • Just submit a DMCA request. Poof!

      You can use a DMCA request to plant fake evidence?

      Remember, absence of evidence is not evidence of absence. This ruling says that historic pages found on archive.org are considered reliable enough to be admitted in civil litigation. I would be pretty surprised if a federal judge ever ruled that a lack of material in the Wayback Machine should be considered by a judge or jury.

  • by Anonymous Coward

    Does this 1990 archive of clownsex.org make my ass look big???

  • by Anonymous Coward

    The internet archive is, frankly, quite very crappy. I'm going to ignore the problems they have retaining good and knowledgeable employees. Their internal data structures are lossy as much of what they ought to have you cannot access because the software is doing really stupid stuff in the background. This is visible from the outside and I had (back then still) employees confirm that to me. Short version: Their framing sucks big large hair balls through small tubes. There is also that blanket robots.txt set

    • There is also that blanket robots.txt set up by domain squatters are allowed to retroactively alter the visible record.

      Key term there is "visible". So long as the archive is preserved, the court can access it.

  • by Anonymous Coward

    It's amazing what is trusted these days. For example, archive.org is not regulated, controlled, managed, or ANYTHING WHATSOEVER that could be considered legally binding yet here they are trusting it for legal decisions. Do they not understand how easy it would be to put fake data up there, remove data, alter data, etc? This is equivalent to asking a random private citizen that has nothing to do with a case to testify as a witness in said case. It's ridiculous.

    If they do want to make legal decisions then the

    • by stoborrobots ( 577882 ) on Thursday May 19, 2016 @12:58PM (#52142367)

      A random private citizen who is know for pointing a video camera at the relevant section of street every day. Like, say, some business that operates a surveillance security camera where the field of view includes the crime scene. Evidence like that is routinely gathered and used in court.

      Archive.org operates a similar video camera pointing at many web servers.

    • by Dragonslicer ( 991472 ) on Thursday May 19, 2016 @01:25PM (#52142571)

      This is equivalent to asking a random private citizen that has nothing to do with a case to testify as a witness in said case.

      Er, what do you think an eyewitness is? Other than "random", but archive.org isn't randomly selected either.

    • by coldsalmon ( 946941 ) on Thursday May 19, 2016 @02:22PM (#52142891)

      Admitting the evidence is not the same as trusting it. The general rule is that any relevant evidence is admissible, and any evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence." The Wayback Machine easily passes this test. The trier of fact has to look at all of the relevant evidence and make decisions about the quality of all of the items; he or she may decide that the data from the Wayback Machine is not of high quality. However, excluding the evidence means that the trier of fact cannot consider that evidence at all. It seems plain that the Wayback Machine is relevant evidence in an IP trial, as TFA says.

  • by Anonymous Coward

    Please consider installing the "ArchiveTheWeb" Chrome extension then: https://chrome.google.com/webstore/detail/archivetheweb/jgpbjlabbfodbjecclkddfnanflgkjfe?hl=en-US

    It automatically saves the web pages you surf and browse TO The Internet Archives' Wayback Machine.

  • by Virtucon ( 127420 ) on Thursday May 19, 2016 @12:57PM (#52142359)

    Where's the federal funding to make sure that it's a maintained repository? it's a charitable organization but I would think some sort of royalty arrangement should be provided. I mean if the copyright/trademark/patent system is making use of it or the plaintiffs/defendants then it should have some direct funding stream in terms of its value as a provider of information. I could also see litigants subpoenaing witnesses to ascertain how information is collected etc. That doesn't come for free, not by a long shot.

    • Where's the federal funding to make sure that it's a maintained repository? it's a charitable organization but I would think some sort of royalty arrangement should be provided.

      How did you get that logic? If all evidence submitted in court were combined with a requirement for continued funding for future litigation then the USA could likely add another zero to it's national debt.

    • That doesn't come for free, not by a long shot.

      It isn't. The Internet Archive has a well-established process and payment schedule [archive.org] for requesting an affidavit on the authenticity of a given archived page.

  • This means it could be used to fight patent trolls who abuse open source and creative commons items. Makerbot comes to mind on this.
  • Well, the actual quote is:

    "Who controls the past controls the future; who controls the present controls the past." -- Ingsoc [wikipedia.org]

    Of course, in the case of archive.org the equivalent of 1984's "Memory Hole" is the way they treat domain hijackers that put a robots.txt block on prior content of that domain name:

    It's gone. Poof.. not even a bright flash of plasma, let alone smoke.

  • An interesting link on robots.txt and preservation:
    http://www.netpreserve.org/web... [netpreserve.org]
    (SPOILER: no anwsers)

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