Although the internet is well-entrenched in every aspect of our lives, the legal profession still struggles with how it is to be used as a source of information, connectedness, and admissible evidence. Heck, states even differ wildly on whether or not you can friend a judge on Facebook. No one is entirely sure what to do about sitting jurors and use of social media. With all of that confusing (and sometimes downright Luddite) thinking about the virtual world, it is gratifying when there are decisions that reflect that a judge understands how the internet works.
Recently, the United States District Court for the District of Kansas issued an opinion which held that evidence obtained from the Wayback Machine was admissible. If you are not familiar with the Wayback Machine, it is an archive of the internet. It crawls the web and archives copies of websites on a regular basis. Here’s an example of how Lawyerist looked back in the day:
Of course, the Wayback Machine is a goldmine if you have the sort of case where it is important to prove that a website once contained something that the opposing party has now disappeared down the memory hole. That is exactly what happened in the Kansas case.
The plaintiff, a trucking company, brought a trademark infringement suit against the defendant, a truck driver job posting website, alleging unauthorized use of the plaintiff’s trademark on the defendant’s website. To prove the defendant’s use of the trademark, the plaintiff intended to introduce at trial screenshots of defendant’s website taken from the Wayback Machine, along with authenticating deposition testimony from an employee of the Internet Archive.
The defendant, of course, had every reason not to want this evidence to come in, so they tried every evidence argument they could think of. The judge didn’t like the hearsay argument, and he really didn’t like the argument that the Wayback Machine is unreliable because it doesn’t scrape every last portion of a website all the time.
[T]he fact that the Wayback Machine doesn’t capture everything that was on those sites does not bear on whether the things that were captured were in fact on those sites. There is no suggestion or evidence […] that the Wayback Machine ever adds material to sites (other than a Wayback Machine toolbar and coding that allows links to work).
The internet is an evolving thing that changes every day. A tool that helps preserve its past is invaluable to attorneys, and it is great to see at least one court understands.