By William Slicker
In 1995, Brewster Kahle and Bruce Gilliat began archiving web pages and named their site the Internet Archive. In 2001, they rebranded as the Wayback Machine. The name Wayback Machine is a take off from the Wayback Machine used by Mister Peabody and Sherman to travel back in time in The Adventures of Rocky and Bullwinkle TV show.
The Wayback Machine allows users to view pages and sites as they existed on a specific date in the past that the website was archived. This can be valuable evidence of what a now scrubbed site once displayed.
Just like other documentary evidence, content from the Wayback Machine must be authenticated in order to be introduced into evidence.
Some courts have admitted Wayback Machine content by taking judicial notice that Archive.org’s Wayback Machine content possesses sufficient indicia of accuracy that it can be used readily to determine the various historical versions of a website. Mendoza v. Feniz Ammunition, LLC, Case No 2:24-cv-1120-ODW (C.D. Cal. 2024) dealing with copyright infringement; Evo Brands, LLC v. Al Khalifa Group, LLC, 657 F. Supp 3d 1312 (V.D. Cal. 2023), dealing with trademark infringement; Valve Corporation v. Ironburg Inventions, Ltd, 8 F. 4th 1364 (Fed. Cir. 2021) dealing with patent infringement; Distributors Outlet.com, LLC v. Glasstree, Inc., (E. D. N. Y. 2016), 2016 WL 324830 at *2 dealing with website redesign and domain usage; Marten Transport Ltd v. Platform Advertising, Inc., 184 F. Supp 3 1006 (D. Kan. 2016) dealing with trademark infringement, Pond Guy, Inc. v. Aquascape Designs, Inc., 2014 WL 286387 at *4 (E.D. Mich. 2014) dealing with trademark infringement.
However, other courts have held that in order to admit Wayback Machine content, there must be a witness who can testify how the website works and how reliable its contents are. United States v. Bansal, 663 F. 3d 634 (3rd Cir. 2011) dealing with internet crimes; Specht v. Google, Inc. 747 F. 3d 929 (7th Cir. 2014) dealing with trademark infringement; Weinhoffer v. David Shoring, Inc., 23 F. 4th 579 (5th Cir. 2022) dealing with online auction; Fisher v. Instant Checkmate, LLC, Case 19C-4892 (N.D. Ill. 2021) dealing with publicity of information; Uniters North America, LLC v. Serveco International, Inc. Case No. 8:21-cv-2381-CEH (M.D. Fla. 2022) dealing with trademark infringement, Gilfus v. McNally Capital, LLC, 2022 WL 4079587 at *3 (M.D. Fla. 2022) dealing with breach of contract; Nassar v. Nassar, 2017 WL 26859 at *5 (M.D. Fla. 2017) dealing with cyberpiracy and cybersquatting; Gaza v. LTD Financial Services, 2015 WL 5009741 at *2 (M.D. Fla. 2015) dealing with automatic telephone calls.
Based on the above cases from the Middle District of Florida, it appears that if you have a case in Florida, you are in a jurisdiction that requires an affidavit or testimony to authenticate Wayback Machine content. There are third party businesses that offer to provide that authentication and chain of custody testimony. One of those third party businesses is Page Vault. Another one is Page Freezer. It would probably be prudent to use such a service to make sure you get Wayback Machine content into evidence. Additionally, since the Wayback Machine’s archiving is sporadic and sometimes it only catches part of a site instead of the entire site, it would probably be prudent to employ a third-party business at the start of your employment by your client, prior to filing suit. Then, you should send a letter to preserve evidence to the opposing side as soon as the suit is filed.
Author Bio
William D. Slicker served as a law clerk to the Honorable Steven H. Grimes at Florida’s Second District Court of Appeal and as a law clerk to the Honorable Warren H. Cobb at Florida’s Fifth District Court of Appeal. He has received the Florida Bar President’s Pro Bono Award for the Sixth Circuit, the Ms. JD Incredible Men Award, the St. Petersburg Bar Foundation’s Heroes Among Us Award, the Community Law Program Volunteer of the Year Award, and the Florida Coalition Against Domestic Violence Lighting the Way Award.