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Monday, May 30, 2016

US says yes to Wayback Machine, but what is the position in Australia?

By Adrian Chang, Associate

Turning back the clock on websites with the Wayback Machine is fun, but according to a recent ruling in a US District Court, it also makes for good evidence.

Most regular internet users will be aware of the Wayback Machine – a service offered by an American non-profit called the Internet Archive that allows users to browse through the Archive's records which house (mostly) complete versions of the past forms of websites.

The Wayback Machine is particularly helpful to IP lawyers because it can demonstrate how clients or the opposing side dressed their websites over time, which can be relevant in all sorts of disputes, such as the one between the parties in Marten Transport, Ltd v Plattform Advertising, Inc.

In that case, the applicant submitted screenshots to the Court of the respondent's website to prove the respondent referred to the applicant's services.

The Court had the benefit of testimony from an employee of the Internet Archive who was able to explain how the records were generated. The Court found that even though the records were sometimes incomplete (images sometimes aren't captured properly and some dynamic pages fall apart), there was no allegation that the Internet Archive ever added anything to the website records, meaning that what was on display was accurate.

The Court accepted that the screenshots were admissible on two grounds: first, that the screenshots had been authenticated by the Internet Archive's employee as the business records of the Internet Archive and second, that the Court was required to take judicial notice of the records on the basis that the accuracy of the records could not be seriously disputed.

Though this is a US case, it is interesting to compare the position there with the Australian position.

In Australia, relying on records produced by the Wayback Machine as evidence in court can be a tricky proposition. According to E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934, the Wayback Machine's records are inadmissible hearsay and are not business records under section 69 of the Evidence Act 1995 (Cth) (though the case was overturned on appeal, the appeal decision left this point untouched). However, unlike in Marten Transport, Justice Flick in E & J Gallo Winery did not have the benefit of an employee of the Internet Archive explaining how the records were generated, and this lack of information was clearly a factor in his Honour's reasons (see [127]).

The result in E & J Gallo Winery may come as a surprise to some, because referring to Wayback Machine records is reasonably common practice amongst Australian IP lawyers – see for example Food Channel Network Pty Ltd v Television Food Network G P [2010] FCA 703 and Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) [2012] FCA 81. In each of those cases, (neither of which referred to E & J Gallo Winery on this point) the judge referred to Wayback Machine records uncritically, so it seems their admissibility was not challenged. However, the E & J Gallo Winery decision remains, so be wary of a challenge to any attempt to rely on evidence produced by the Wayback Machine.

If the issue ever did get aired out again in an Australian court, and assuming the party seeking to rely on Wayback machine records produced evidence from an Internet Archives employee, it is likely that the outcome would be very similar to that in Marten Transport. But until that day, the question is left hanging.

It is also worth pointing out that, as great as it is, the Wayback Machine has its limitations. Website owners can ask for records relating to their website to be deleted or never archived at all. Further, the way the archives are created means that the records reflect the website at a single point in time and the period between records can be quite long. So even if you can show what a website looked like at one particular point it time, the Wayback Machine might not tell you what it looked like in the intervening period between records. Therefore, if you anticipate a dispute over the content or appearance of a website, it is prudent to gather your own evidence of a website's appearance, for example by taking time and date stamped screen shots on a regular basis.

However, it is not always possible to know in advance what material you will need to rely on, so the Wayback Machine is a useful resource particularly because it would be very difficult to mount a colourable challenge to the accuracy of its records.


2 comments:

  1. An interesting article. You might be interested to know that your comment that

    "...referring to Wayback Machine records is reasonably common practice amongst Australian IP lawyers..."

    is correct in my experience, as it is often used in domain name arbitration.The issue often arises in such cases as to how the respondent /registrant of the domain name was using the domain name some months or years ago.The respondent may say that it did not use the domain name to advertise products that compete with the complainant/ trademark owner's goods, but when you can see the actual screenshot of the site, taken months or years earlier it may show a completely different picture, namely that it was being used at some stage to advertise competing goods. Likewise, a respondent wanting to prove that it always used its, say, generic domain name only to promote similarly generic goods, can use Wayback Machine screenshots to show that it was doing exactly that.

    The problem sometimes arises that there is no screenshot taken at the time, either because the screenshots on the Wayback Machine are spaced so far apart that they are not of much value. There also seems to be a means of avoiding screenshots being taken of a particular site and it is something of a mystery as to how that is done.

    As a practical matter, the question also arises as to whether the arbitrator or panelist is permitted to use the Wayback Machine on his or her own volition or whether it can be looked at only if one of the parties introduces the issue or the evidence of the screenshots in its submission. If the arbitrator does some private research on the Wayback Machine to see what it shows, is he nor she obliged to bring that to the attention of the parties to give them an opportunity to reply?

    The Wayback Machine is, however, a valuable tool.

    Thanks for a good article.

    The Hon Neil Brown QC

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    Replies
    1. Hi Neil,

      Many thanks for taking the time to share your thoughts and experience with us - I'm pleased to hear our thoughts align with your own!

      Adrian Chang

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