Are Screenshots from the Wayback Machine useful as evidence?

[SoylentGreen]

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.

[Moe Hacken]

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

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 If such content has not been archived by the operator of the website, the proponent may be forced to seek the admission of the website content as archived by the Internet Archive Company at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

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.

[SoylentGreen]

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.

[Moe Hacken]

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.

[SoylentGreen]

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.

[Robert Krausankas (BuddhaPi)]

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.

[Moe Hacken]

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

[Oscar Michelen]

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.