ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: Jerry Witt (mcfilms) on July 31, 2012, 01:41:14 PM
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Today I came across an interesting article about the Waybackmachine on Wikipedia:
http://en.wikipedia.org/wiki/Wayback_Machine
It said:
"In an October 2004 case called "Telewizja Polska SA v. Echostar Satellite", a litigant attempted to use the Wayback Machine archives as a source of admissible evidence, perhaps for the first time. Telewizja Polska is the provider of TVP Polonia and EchoStar operates the Dish Network. Prior to the trial proceedings, EchoStar indicated that it intended to offer Wayback Machine snapshots as proof of the past content of Telewizja Polska’s website. Telewizja Polska brought a motion in limine to suppress the snapshots on the grounds of hearsay and unauthenticated source, but Magistrate Judge Arlander Keys rejected Telewizja Polska’s assertion of hearsay and denied TVP's motion in limine to exclude the evidence at trial.[15] However, at the actual trial, district Court Judge Ronald Guzman, the trial judge, overruled Magistrate Keys' findings, and held that neither the affidavit of the Internet Archive employee nor the underlying pages (i.e., the Telewizja Polska website) were admissible as evidence. Judge Guzman reasoned that the employee's affidavit contained both hearsay and inconclusive supporting statements, and the purported webpage printouts themselves were not self-authenticating.[16]"
So based on this, it seems to me that the troll's use of the wayback machine (or Internet archive) is limited. I suppose they'd have a hard time proving either the length of infringement OR even usage with shots from Archive.org. I guess this is why they are so anxious to have you tell them how long you used an image.
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Good find MC!! This could also potentially effect picscout I would think..Picscout scours your server for images, finds one, then finds a page on which the image is used, thus creating a screen capture we see in letters. This screenshot does not prove that the page in question was a "public facing" page, not does it prove that said page could be reached thru any navigational elements contained within the site.. Hell I have loads of pages on my server that are no longer used and not tied to the site in any way shape or form...this could certainly be a valid argument in my eyes.
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I guess this is why they are so anxious to have you tell them how long you used an image.
Just one more reason to not engage in any dialog what so ever with them. Do not tell them a damn thing! Ask for proof of claim....period....end! Thanks for the post McFilms.
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This is a great posting, MC. Thanks. The case is from Poland, right?
Too bad that this wouldn't be a solid precedent for folks residing in the US.
I guess that this really shows that it sometimes pays to just try an idea.
I would have assumed that the archive would have been pretty solid evidence.
One just never knows.
S.G.
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That's an interesting find, Jerry. It would be good to have a precedent like that in the U.S. Perhaps no one has thought of challenging Wayback Machine in a court yet, or perhaps it has been tried unsuccessfully.
As Robert said, if Wayback Machine's printouts were ruled not to be self-authenticating in the U.S., the ruling could apply to PicScout or other such content scrapers. Of course, that's all conjecture.
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The part that I found interesting and caught my eye was where it said that even the purported webpage printouts themselves were not self authenticating. To me that means that the screenshot Getty send you don't mean a darn thing or am I reading that wrong.
Again it might be an angle to attempt the next time Getty takes someone to court here in the states and has screenshots as evidence.
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Good point, Greg.
It would be quite funny if Getty had to bring in a laptop to the court, and call up the actual website to prove their assertions.
By then, any alleged infringement would be gone of course.
lol.
S.G.
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SG -- It's worth mentioning that Telewizja Polska is an Illinois corporation. I think this case was all in the US.
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U so funny, MC.
http://en.wikipedia.org/wiki/Telewizja_Polska
ahh... I guess that you mean "Echostar Satellite"?
(http://reviewsic.files.wordpress.com/2009/12/b0009r1t7m-01-_ss500_sclzzzzzzz_v1125033352_.jpg)
If so, then what a great precident. Perhaps, one of the greatest finds EVER?
S.G.
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SG -- It's worth mentioning that Telewizja Polska is an Illinois corporation. I think this case was all in the US.
Indeed:
http://scholar.google.com/scholar_case?case=15389748576569562202&q=Telewizja+Polska+SA+v.+Echostar+Satellite&hl=en&as_sdt=2,5&as_vis=1
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Wow... who knew?
Here's my face right now:
(http://i41.tinypic.com/2zz3vdg.gif)
S.G.
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So this ruling could possibly affect Wayback Machine printouts or other type of printouts offered as evidence by "strategic litigants," in the United States, as of right now. Perhaps no one has tried to go there since this case from 2005. Perhaps I'm wrong about that, further research would be required. I'll see what I can find.
I wonder if the Aloha Plastic Surgery legal team is thinking along these lines at all. Hawaii's court may take an Illinois precedent in consideration.
This may just be one the greatest finds ever, Jerry.
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Jerry, I found a very interesting article about this very same topic:
http://tinyurl.com/84ldxbl
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Thank you for clarifying that Jerry, the fact that this was a US case makes this awesome news and will make it just that much harder for the copyright trolls!
SG -- It's worth mentioning that Telewizja Polska is an Illinois corporation. I think this case was all in the US.
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Ahh! I see why the Wayback machine might not be good evidence.
The thing to remember: Images in a web site appear there through links. The wayback sometimes changes the links and sometimes does not. In both cases, there can be issues with using the screen shot as evidence of what happened in the past:
The links on archived Web sites may remain active
but link to different material from that associated with
the Web page at the time that it was archived. The linked
material may be to current sites or to other stored link sites
from a different time. Indeed, links may connect to current
active sites and show current banner advertisements
available at the site, rather than linking to sites as they
existed at the date of capture. ...
... In
short, the process of copying a Web site for archiving may
result in changes to the extent that the archived Web site
may not show accurately the links that existed at the time
shown for the Web site storage date. The Alexa Internet
crawler technology rewrites the original link code in html
to re-direct links to current or stored links.
The fact that the wayback sometimes changes the html of the page -- and in particular the links--would matter in court. In cases about images, the images only appear through links. So, this can matter. But how exactly it mattered will depend on what happened--- still. It's interesting. Wayback machine evidence might not hold up.
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Lucia makes a great point.
Even if Picscout found an "infringement" on a person's site, they will not be able to prove with certainty how long it was on there.
This might be a viable defense in many cases...
S.G.
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Case history has generally seen Wayback Machine printouts accepted as evidence with some authentication possibly required, such as an affidavit from an Archive.org operator. The standard appears to be that unless one can prove that Archive.org is biased or faulty in some way, the evidence from the Wayback Machine is generally reliable. In the case that Jerry points out, the plaintiff (Telewizja Polska USA, Inc.) failed to demonstrate that the Wayback Machine printouts were either biased or unreliable:
...the court relied on the affidavit of “Ms. Molly Davis, verifying that the Internet Archive Company retrieved copies of the websites as it appeared on the dates in question from its electronic archives.” The plaintiff “presented no evidence that the Internet Archive is unreliable or biased” or “denied that the exhibit represents the contents of its website on the dates in question” or otherwise “challenged the veracity of the exhibit.”
Source: Proving Web History: How to Use the Internet Archive http://tinyurl.com/84ldxbl (http://tinyurl.com/84ldxbl)
Here's another opinion on the Wayback Machine's admissibility as evidence:
Even more dubious is content obtained from older versions of a website. If such content has not been archived by the operator of the website, the proponent may be forced to seek the admission of the website content as archived by the Internet Archive Company at http://www.archive.org. Authentication of such evidence may be accomplished through testimony or affidavit that the Internet Archive Company retrieved copies of the website as it appeared on the dates in question from its electronic archives. Though “the Internet Archive does not fit neatly into any of the non-exhaustive examples listed in Rule 901” and “is a relatively new source for archiving websites,” at least one district court has held that, absent evidence that the Internet Archive is biased or unreliable, or evidence contesting the veracity of the proposed exhibit, such testimony or affidavit is sufficient to satisfy the threshold requirement for admissibility – that is, a prima facie showing of genuineness.
Source: The admissibility of electronic evidence under the Federal rules of evidence http://jolt.richmond.edu/v17i2/article5.pdf (http://jolt.richmond.edu/v17i2/article5.pdf)
I guess the answer to Jerry's question is that so far, Wayback Machine evidence has been allowed, but it has not been challenged very much in court. Specific instances of the Wayback Machine captures could be challenged on technical grounds, such as being incomplete or having been altered by Archive.org's spidering process. It appears that has not happened yet.
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It's important to note that while what Moe says is true, at the actual trial, the Internet archival data was NOT in fact admissible as evidence.
"However, at the actual trial, district Court Judge Ronald Guzman, the trial judge, overruled Magistrate Keys' findings, and held that neither the affidavit of the Internet Archive employee nor the underlying pages (i.e., the Telewizja Polska website) were admissible as evidence. Judge Guzman reasoned that the employee's affidavit contained both hearsay and inconclusive supporting statements, and the purported webpage printouts themselves were not self-authenticating."
http://en.wikipedia.org/wiki/Wayback_Machine
As this was part of the final determination, this is the actual precedent.
It's also especially relevant in that even if such archival evidence is accepted, we have this court case that shows that the evidence might be unreliable.
Furthermore, even if later cases haven't challenged the veracity of "archival" evidence, this does not dilute the value of this case as a precedent.
That may only mean that past defendants chose not to use this case in their arguments, or weren’t aware of it.
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I still think that the weak contractual agreements between artists and the retailers will be the primary defence against trolls in the forseeable future.
However, it's nice to have the above defense as a back-up.
Another startling fact is that since it appears that many agreements made between Getty and their artists aren't signed, it leaves both the artist and Getty on questionable legal grounds.
Imagine if an artist and Getty had a dispute. Picture a "breach of contract" dispute wherein nobody has actually signed a contract.
What a mess that would be.
S.G.
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I would like to believe that the precedent is what Judge Ronald Guzman ruled, partly because I tend to agree with it. But for a number of strange reasons, it is not:
http://tinyurl.com/c3r3qmk
The state of the art for this issue is that "it varies from judge to judge," according to this book excerpt.
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Thanks for your research and the link.
The link didn't work for me; perhaps you could repost it?
I also agree that decisions do vary...
S.G.
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I also agree that decisions do vary...
I once went in front of a judge ( well actually more than once!) and I can remember , saying in my head over and over and over like a mantra "please let him be in a good mood"...he wasn't..time out corner for me!
Point is decisions are based on other factors, as well as "law", even with federal guidelines in place they still have some leeway.
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S.G., this is the original link. I guess the tinyURL version didn't work for you? Hope this huge URL does, it's a very interesting read.
http://books.google.co.cr/books?id=SUErZdbvcOkC&pg=PA195&lpg=PA195&dq=ronald+guzman+polska&source=bl&ots=BoYO_rOnQz&sig=3C-iusl_hf3qOZDkFomKjIfaPVM&hl=en&sa=X&ei=RzocUPbgE6Pz0gGQpoDQCA&redir_esc=y#v=onepage&q=ronald%20guzman%20polska&f=false (http://books.google.co.cr/books?id=SUErZdbvcOkC&pg=PA195&lpg=PA195&dq=ronald+guzman+polska&source=bl&ots=BoYO_rOnQz&sig=3C-iusl_hf3qOZDkFomKjIfaPVM&hl=en&sa=X&ei=RzocUPbgE6Pz0gGQpoDQCA&redir_esc=y#v=onepage&q=ronald%20guzman%20polska&f=false)
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People cite to the Magistrate's opinion because they haven't done their homework (or they like what it says), A district Court judge's opinion is the final say on something ( within the same case). Magistrate Judge's make rulings along the way to help defray the district judge's workload. So a magistrate normally oversees discovery - when rulings are more lenient as to what one side can see or what may be relevant, but then a district court judge decides at trial what is admissible. That is the only real decision that matters. But if you were able to subpoena someone from The Internet Archive to come to court and explain how it worked and had them conduct the search and tell a court what the search revealed, I believe that would be admissible. You could also perhaps retain them as expert witnesses on internet archiving and storage of web pages - then I think it would definitely be admissible.