Abstract

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Best Evidence and the Wayback Machine: Toward a Workable Authentication Standard for Archived Internet Evidence


Deborah R. Eltgroth


Fordham University - Fordham Law Review

August 22, 2009

Fordham Law Review, Vol. 78, p. 181, 2009

Abstract:     
This Note addresses the use of archived Internet content obtained via the Wayback Machine, a service provided by the Internet Archive that accesses the largest online digital collection of archived Web pages in the world. Given the dynamic nature of the World Wide Web, Internet content is constantly changed, amended, and removed. As a result, interim versions of Web pages have limited life spans. The Internet Archive indexes and stores Web pages to allow researchers to access discarded or since-altered versions. In the legal profession, archived Web pages have become an increasingly helpful form of proof. Intellectual property enforcers have recognized the value of the Internet Archive as a tool for tracking down infringers, but evidence from the Internet Archive has rarely been admitted at trial. This Note surveys the handful of judicial opinions and orders that comment on the admission of Internet Archive evidence and explores the conflict underlying these approaches. As an alternative to the courses they have taken, this Note urges courts to treat the introduction of archived Web pages as implicating a best evidence issue in addition to an authentication question. Under this approach, courts would decide using evidence sufficient to the purpose, but not necessarily admissible at trial, whether the archived page qualifies as a 'duplicate' of a page that once appeared on the Web. Beyond that, courts would apply authentication standards already developed to decide whether a reasonable jury could find, based only on admissible evidence, whether proffered evidence accurately represents the page stored on the Internet Archive server and, if necessary, whether the original page accurately represented material placed on the originating site by the site’s owner or operator. With this additional step, reliable evidence from the Wayback Machine can become as easily admitted as any other Internet-derived proof.

Number of Pages in PDF File: 35

Keywords: Authentication, best evidence, Internet Archive, Wayback Machine, Telewizja

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Date posted: August 23, 2009 ; Last revised: May 13, 2014

Suggested Citation

Eltgroth, Deborah R., Best Evidence and the Wayback Machine: Toward a Workable Authentication Standard for Archived Internet Evidence (August 22, 2009). Fordham Law Review, Vol. 78, p. 181, 2009. Available at SSRN: http://ssrn.com/abstract=1459805

Contact Information

Deborah R. Eltgroth (Contact Author)
Fordham University - Fordham Law Review ( email )
140 West 62nd Street
New York, NY 10023
United States
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