The Wayback Machine is a service offered by the Internet Archive, (at www.archive.org) an American non-for profit organisation. Domain Times has made a donation to the Wayback Machine to help keep it going and would urge other users to consider supporting it in this way.
The Wayback Machine crawls over the internet, looking at websites and recording what was contained on websites in the past. Relevantly for IP lawyers, it allows access to demonstrate how websites have been dressed over time and what material they carried on particular dates. Sometimes a search shows many snapshots of a website. Sometimes a search is negative and there are no shots for a site. Thus the Wayback Machine is a useful source of information for the curious and for potential information about the past use of a website that could be used as evidence in a particular case.
But it is not without its problems, as website owners can apparently “ask” the Internet Archive not to keep copies of the website, which is presumably the reason why some searches draw a blank. Even when there are records to which access can be obtained, there can be long periods of time where nothing shows up for the particular month or year in question.
The most pressing question is whether Wayback Machine records are admissible as evidence in court? In the United States the short answer to this question is yes, they are. The US Federal Circuit Court case of O'Toole v. Northrop Grumman Corp[1] sanctioned taking judicial notice of factual information on the internet and accordingly, the Kansas District Court in Marten Transport, LTD v. Plattform Advertising, INC[2] found the requirements for taking judicial notice were satisfied, meaning the Court must take judicial notice of Wayback Machine records.
The relevant difference between Marten Transport and the most recent Australian case is that in Marten Transport there was an employee from the Internet Archive who gave evidence as to how the records were generated. In that case, the court held that expert testimony was not necessary, but even if it was required under Rule 901 of the US Federal Rules of Evidence the employee was in a position to provide such expert testimony sufficient to authenticate the screenshots. The Wayback Machine records were therefore deemed admissible.
But what is the situation in Australia and other jurisdictions? In E&J Gallo Winery v Lion Nathan Australia Pty Ltd[3], The Federal Court of Australia held that Wayback Machine records were inadmissible hearsay and were not business records under s 69 of the Evidence Act 1995 (Cth).
In that case, what was relevant for the Court was that the representations contained within those brochures were not made either "by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact" or "on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact" within the meaning of s 69(2). There was a clear lack of evidence by a person to support the records, one that had not been a problem in Marten Transport.
The subsequent question is how crucial is it to have a person like the employee of the Internet Archive in the Marten Transport to give evidence at the trial in support of the Wayback Machine records as evidence? In E&J Gallo Winery the court underlined that there was not enough evidence as to the "business" of the Internet Archive, an indication that providing background evidence on the Wayback Machine itself and how it collects its information may be crucial for future cases. For Australian IP lawyers, it should also be noted that in the cases of Food Channel Network Pty Ltd v Television Food Network G P [2010] FCA 703 and Fry Consulting Pty Ltd v Sports Warehouse Inc (No2) [2012] FCA 81, Wayback Machine records were referred to uncritically.
There is also the issue for the arbitrator or panellist, when resolving a dispute about the ownership of a domain name, where the issue may be how the domain name had been used in the past, rather than a judge presiding in a trial, there is the question of whether it is permitted to use the Wayback Machine on their own accord as research or whether the arbitrator or panellist is obliged to bring it to the attention of the parties; or whether it is not permitted to do so unless the parties introduce the issue or the evidence. In the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, section 4.5 addresses the question as to whether a panel may 'perform independent research when reaching a decision'. The consensus view is that "A panel may undertake limited factual research into matters of public record if it deems this necessary to reach the right decision. This may include visiting the website linked to the disputed domain name (and) consulting a repository such as the Internet Archive" However, it is important to note that parties to the dispute should be advised by the panel, as the Overview also states that " If a panel intends to rely on information from these or other sources outside the pleadings, especially where such information is not regarded as obvious, it will normally consider issuing a procedural order to the parties to give them an opportunity to comment."
Finally, the question of whether 'the use of "robotos.txt" or similar mechanisms to prevent website content being accessed in an online archive form a basis for finding bad faith' is also addressed in the Overview under section 3.10. The vi8ew expressed there is that absent a convincing justification, panels have found that the use of such a device may be considered as an attempt by the domain name registrant to block access by the panel to relevant evidence. "In such a case, a panel may be entitle to assume that appropriately evidenced prima facie reasonable factual allegations made by a complainant as to the historical use of the website are true". And depending on the particular case, there may be consideration for purposes of assessing bad faith.[4]
The use of the Wayback machine by both parties and panels is still relevantly new and is therefore an area of the law that is likely to develop further in future cases, certainly an area to keep an eye on.
[1] O'Toole v. Northrop Grumman Corp., No. 12-2106 (10th Cir. 2013)
[2] Marten Transport LTD v. Plattform Advertising, Inc., No. 2:2014cv02464 (D. Kan. 2015)
[3] E&J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934
[4] See The iFranchise Group v Jay Bean / MDNH, Inc. / Moniker Privacy Services [23658], WIPO Case No. D 2007-1438; Bacchus Gate Corporation d/b/a International Wine Accessories v. CKV and Port Media, Inc., WIPO Case No. D2008-0321; Balglow Finance S.A., Fortuna Comércop e Franquias Ltda. v. Name Administration Inc. (BVI), WIPO Case No. D2008-1216; Rba Edipresse, S.L. v. Brendham Hight / MDNH Inc., WIPO Case No. D2009-1580; Havanna S.S. v. Brendan Hight, Mdnh Inc, WIPO Case No. D2010-1625.