A federal judge in Kansas has held that images from web pages captured by the Internet Archive are admissible as evidence in a trademark infringement case.
The plaintiff in the case introduced the archived websites to show that the defendant had posted an infringing image on its site, and offered testimony from an Internet Archive employee who explained how the service collects and archives sites. The defense objected, since the Internet Archive’s Wayback Machine captures were incomplete and because the employee had not formulated the programming that was used to capture and archive the site.
But Federal District Judge John W. Lungstrum held that “expert testimony is not required to authenticate the screenshots in this case,” and that the archived websites could be admitted as a matter of “judicial notice.” This means because the reliability of the Internet Archive is generally accepted — that it accurately shows whether particular content was displayed on a particular website on a particular date — and thus should be accepted by the court without the need for extensive authentication.
Even if expert testimony were required for introduction of Internet Archive material, Lungstrum added, the witness offered by the plaintiff was qualified to provide it, despite his lack of knowledge of some of the technical details of the Internet Archive collection process. “[I]f the inability to distinguish between the crawlers was a valid concern, then documents from the Wayback Machine could never be admissible, and the Court does not believe that such a result would be appropriate,” Lungstrum wrote.
Judge Lungstrum’s decision is not binding precedent, since he presides over a trial court. And, since it was a trademark infringement case, the mere presence of the allegedly infringing mark in the archived website was sufficient for purposes of the case. But his decision is an important recognition — and apparently not the first — that the Internet Archive is a useful source of evidence in court.