Here’s the situation – you find yourself enmeshed in a hotly contested litigation case. Relevant to the issues in the case are the opposing party’s past web pages on their website. You believe those past web pages will evidence key allegations being made by your client, or refute arguments raised by your opponent. Unfortunately, those pages are no longer visible when you view the website. What can you do to find that information?
Certainly, there are a number of ways you might attack such a problem. For example, you might be able to obtain this information directly from your opponent. Undoubtedly, you will have to overcome vociferous objections and possibly engage in expensive and time-consuming motion work. You might also be able to obtain some information from a third-party via a subpoena – maybe. What if there was an easy, free way to get a snapshot in time of the past web pages of a website?
Enter the “Wayback Machine.” The “Wayback Machine” is a digital time capsule created by a non-profit organization in San Francisco, CA called the Internet Archive. Maintained by content from Alexa Internet, a web traffic reporting company, the “Wayback Machine” allows users to see archived versions of web pages across time.
Let’s say that, for whatever reason, you need to see what the web pages of the Wall Street Journal’s website looked like on January 23, 2002. When you visit the Internet Archive’s website, you will notice a search box to the right of the “Wayback Machine” logo pictured above. Type in the web address for the Wall Street Journal, and you will receive a page that looks something like screen shot at the end of this article. In the column to the far right, under the heading 2008, you will see a hyperlink “Jan 23 2002.” Click on that link, and it will take you to an archived copy showing what the Wall Street Journal’s website looked like on that date, including the information contained on the site, free of charge.
In terms of admissible evidence, the information provided by the “Wayback Machine” has met with mixed results. Litigation in this area is definitely something every lawyer (but especially virtual lawyers) should keep their eye on. Currently, a case is pending in the U.S. District Court in the Northern District of California called Netbula, LLC v. Chordiant Software, Inc. This case began as a copyright infringement case where plaintiff Netbula alleges that defendant Chordiant and two of its officers — in violation of the license granted by the plaintiff — reproduced plaintiff’s software and then incorporated the software into derivative works. Recently, in discovery proceedings, Chordiant argued before Magistrate Judge Howard Lloyd that past web pages from plaintiff’s website would demonstrate that Chordiant had express or implied license to use the software as it did, and would rebut plaintiff’s claim that it had suffered millions of dollars in damages as a result of defendant’s alleged infringement. However, plaintiff had previously placed a “robot.txt” file on their website which essentially blocks the archiving of its web pages by the Internet Archive.
Defendants filed a motion to compel, seeking an order instructing plaintiffs to remove the “robot.txt” file from their website, which would then allow the “Wayback Machine” to archive the site. Relying principally on Federal Rules of Civil Procedure (F.R.C.P.) 34, 37, Magistrate Lloyd ordered the plaintiffs, “within three days from the entry of this order, [to] disable the robot.txt file from its website and promptly advise defense counsel when that has been accomplished.”
At this point, Netbula v. Chordiant is still in the discovery phase. It remains to be seen whether the information sought by defendants will be admissible at the time of trial. For an interesting article on admissibility of this evidence at trial, take a look at the article by Lauren Gelman discussing the Telewizja Polsk SA v. Echostar Satellite case. You can link to the full article here from Stanford University’s Center for Internet and Society. The Gelman article also has a good, basic explanation of how the “Wayback Machine” does its work.