The Internet already lets you live out a vicarious online life, perhaps more thrilling than your own, through sites like Second Life, Lively or There.com. Now you can also travel back in time on the Wayback Machine, to view certain websites as they were more than sixteen years ago. The Wayback Machine is an Internet search tool for archived web pages, which permits you to browse more than 150 billion web pages and other cultural artifacts in digital form, maintained in electronic storage since 1996. The free Wayback Machine service is offered by the non-profit agency “The Internet Archive,” viewable at http://archive.org/web/web.php.
The Wayback Machine is surely an exciting tool for market intelligence professionals. Protections have been put in place against possible abuse. The Internet Archive assures users that it does not do web-crawling into password-protected pages or pages on secure servers. Website owners who want to prevent capture of their pages by the Wayback Machine—or want to remove captured pages retroactively–can do so by tagging their pages for “robot exclusion.”
The Wayback Machine is also a tool of interest for lawyers who need historical information. For example, there are sometimes disputes about whether a brand or trade-mark had a reputation at some date far in the past. Or there may be a dispute about whether a company has continued to use its trade-mark in the normal course of trade, as required to maintain its registration. Since companies may not anticipate legal challenges before they happen, pertinent Internet evidence may not be maintained—or even collected at the relevant time. Patent registrants can also benefit from this tool. Patent registration requires a description of “prior art,” meaning any existing body of knowledge that relates to an invention. A thorough statement of prior art can help to confirm the novelty and non-obviousness of the proposed patent.
Like any evolving information-delivery vehicle, the Wayback Machine will have its tires kicked several times before it can be readily accepted as litigation-standard evidence. A recent case before the Canadian Trade-marks Opposition Board is illustrative. The case itself started way back in 2004. In that year, Reed Elsevier Group filed an application for the trade-mark REED EXHIBITIONS, to be used for products and services associated, generally speaking, with tradeshows and exhibitions. Registration was opposed by Reed Solutions (“the opponent”), an employment agency. Among the grounds of its opposition was a claim that Reed Elsevier had not used the trade-mark in Canada with sufficient recency (that is not since its claimed date of “first use”) to permit registration. The opponent’s evidence included the affidavit of an articling student, containing results of a Wayback Machine search going back to 2002.
While the quality of evidence from the Wayback Machine was found to have limitations (in particular concerning the risk that historical sites may not be reproducible in their complete original form), and while the opponent was not ultimately successful in its case, the hearing officer for the Trade-marks Opposition Board found that Wayback Machine evidence could be accepted as generally reliable. Her decision cited two earlier decisions of the Federal Court of Canada, and another of the Board in which Wayback Machine evidence had been similarly entertained. Quoting the earlier Board decision, she wrote:
“I appreciate that there may be limitations to the accuracy of the Way Back Machine, including but not limited to possible hearsay issues. However, for the purpose of meeting the Opponent’s light initial burden under section 30(b), I find that the search results are sufficient to raise a doubt concerning the correctness of the Applicant’s claimed date of first use […]. The Applicant had the opportunity to file evidence to rebut the results of the Way Back Machine search but chose not to.”
In the few Federal Court cases in Canada in which Wayback Machine evidence has been filed, it appears to have been filed on consent of both parties, without detailed scrutiny. Courts in the United States and Australia have encountered more aggressive challenges to its legitimacy, so there may yet be more test drives in Canada before evidentiary standards are worked out.
Five observations arise with respect to the interest by the market intelligence industry and legal profession in addressing the opportunities for this new-age evidence:
- Demonstration that certain website pages “existed” historically is not conclusive on its own of the reach they achieved with web-site browsing audiences.
- The Wayback Machine does not capture everything in the history of Internet pages. The percentage of pages captured for any given evidentiary purpose can never be known for certain. Therefore, pages found by the Wayback Machine can be taken as reasonably assured evidence of what did exist historically; but it will be more difficult to argue that absence of any relevant pages is proof that the requisite evidence did not exist.
- As described above, companies can use a “robot exclusion” tag on their websites to delete historical pages that may appear in Wayback Machine archives. It is conceivable that an aggressive opponent in a court battle could characterize such action as “destruction of evidence.”
- Although the REED EXHIBITIONS evidence was submitted by an articling student inside the law firm, legal precedent in Ontario suggests that if the evidence is likely to be contentious, it will require submission by an arms-length witness.
- The Trade-marks Opposition Board’s receptive view of Wayback Machine results has been attributed in part to the relatively light burden of proof for which the results have been tendered. Concerns about its limitations will inevitably need to be addressed. Experts on search engines and web crawlers may find themselves in demand.
The co-written article first appeared in Vue magazine in December 2012.
Dr. Ruth M. Corbin, ICD.D, Ph.D., LL.M is Managing Partner and CEO of CorbinPartners Inc.,