Finding Evidence in Old Websites

Like deleted e-mail and computer files, old websites never die. Using an online database called the Wayback Machine and archived web pages collected by operations like Google, lawyers are unearthing a wide range of web-based evidence, including websites that no longer exist and old versions of current sites.

Intellectual property lawyers have used these techniques for a handful years to locate old websites that demonstrate their clients’ trademark or domain name has been misused, but the practice is now expanding into other areas of the law. Archived websites are providing helpful evidence in criminal cases, family law matters and product liability cases, among others.

Attorneys say it’s only a matter of time before these tools become commonplace in legal departments and courtrooms across the country.

“We leave digital footprints everywhere. This is going to spread quickly,” said Ken Strutin, director of legal information for the New York State Defenders Association.

How it Works

The Internet Archive, a non-profit group started the Wayback Machine service in 1996. According to the Internet Archive’s website, the intention was to develop a “digital library of Internet sites and other cultural artifacts in digital form.”

Finding an archived site using the Wayback Machine is as simple as logging on to www.waybackmachine.org and typing the web address of the site you wish to search. The archives are consistently updated as the machine’s web crawler travels the Internet gathering electronic snapshots of websites. The current set of sites spans from early 1996 through roughly six months to one year ago, depending on the site. The Wayback Machine boasts an archive of 40 billion pages and 50 million searchable websites.

Austin, Tex., attorney Stephen Meleen said the archive generally captures a snapshot of a website when it has been changed recently.

“For some there may only be three or four versions,” he said. “For others, there may be 30 or 40.”

Google’s system, which is less extensive, is called Google Cache. Like the Wayback Machine, Google’s web crawler makes electronic copies of websites. However, it makes copies of a site so frequently that the new cache often replaces the earlier cached file, thus resulting in a less in-depth search. It can be searched by visiting www.google.com and typing the website’s address into the search window. When the results are presented, click on the “Cached” link next to the site you want to investigate.

“With Google, it’s kind of hit and miss,” said Strutin.

Meleen, who practices trademark and copyright law with Fulbright & Jaworski, said Google Cache is particularly useful “if you found out a site was changed this morning and you wanted to see how it was yesterday.”

Lawyers should realize that Internet archiving systems aren’t complete databases. A company or individual can block the Wayback Machine from crawling its site, and exclude any historical sites from the Internet Archive, by placing something called a robots.txt file on its Web server.

“It’s going to be a great resource, but it can by no means be an exclusive, all-encompassing resource,” said Alison McDade, trademark and copyright counsel for Dell Inc. in Round Rock, Tex.

Variety of Practice Areas Benefit

Services like these could be useful in product liability cases to find old corporate press releases that provide product information, Strutin said.

Intellectual property lawyers use these tools virtually every time they deal with a trademark or copyright case that might involve a website from the past or information from a web page that is no longer live on the Internet.

Meleen uses Wayback to investigate who first used a particular trademark. “If you go to the earlier website and see [an opponent was] using it first, that may preclude you from [bringing an action] against them. Rather than paying for a full-scale investigation, you can get pretty accurate information this way,” he said.

With domain name cases, Wayback can be used to determine whether someone infringed on a trademark by cybersquatting or typosquatting, where the registrant uses a misspelling of a company’s domain name, according to Richard Peirce of Philadelphia’s Ballard Spahr Andrews & Ingersoll, who specializes in domain name and trademark litigation.

The archived web evidence might also be used to prove that a company’s statement about how it used a certain website is erroneous.

“You use it in situations to prove a website was in use when an infringer says it wasn’t, or to prove the use of the site was different than what they said it was,” McDade said.

For example, Dell was recently involved in a case where an individual registered the URL dellcomputersucks.com. When someone entered that address, the user would be directed to the website for a competing computer company.

Dell wanted to seize the address under the domain name dispute resolution policy of the Internet Corporation for Assigned Names and Numbers (ICANN), an entity that regulates Internet domain names.

After Dell sent a letter to the registrant of the site, he quickly changed it to an alleged “gripe site,” claiming that the site had only been redirecting to a competing site for few months while he was compiling the gripe site.

But Dell had used Wayback Machine before sending the letter to gather evidence to “prove that he had registered and intended to use it as a competing site from the get-go,” McDade said.

She added that in many cases, archived website evidence might be used to encourage a settlement. In this case, however, the case ended in May with an arbitration panel finding that the other party used the site in bad faith and ordering the dellcomputersucks.com address to be transferred to Dell.

Trademark lawyers stress that the timing of using Wayback is essential.

“You typically do it before you send a cease-and-desist letter to gather evidence indicating the site has been used for a while the way it is now,” McDade said. “Often when people get a cease-and-desist letter, they take the site down or put up some fluff. You want to capture that evidence from as far back as you can.”

Will it Be Admissible?

The testing of archived web evidence in court has only just begun.

In the first test, Telewizja Polska USA Inc., which broadcasts a Polish language television channel in the United States, sued Echostar, the owner of Dish Network, arguing that the defendant had pitched itself using the plaintiff’s brand, even after their marketing agreement had expired.

Echostar defended itself with Wayback evidence that showed that the plaintiff – on an old version of its website – had also highlighted the marketing agreement after it expired.

The plaintiff moved to exclude the evidence, but a representative from the Internet Archive, which operates the Wayback Machine, signed an affidavit indicating that the site copies were authentic. In 2004, a U.S. District Court judge in the Northern District of Illinois held that the evidence could be admitted, and the case awaits trial.

Meleen said this method of authenticating archived evidence will likely continue to be successful in many cases.

“Basically, you need someone with personal knowledge indicating that is how the page appeared on that day,” he said. “Then, the question [might become] the accuracy of the Internet Archive.”

If more courts begin to take judicial notice of the accuracy of archived evidence, the question will arise in cases where a party wants to prove something a defendant or witness posted to the Internet was not only accurate, but also actually written by that person.

Courts are only beginning to address this issue.

“It’s still a new area of the law that’s changing and shifting every week,” said Peirce, the Philadelphia trademark lawyer.

The very use of Wayback Machine evidence is being challenged by at least one company, and now a law firm involved in the case is in the hot seat.

Healthcare Advocates Inc. in Philadelphia, in July filed a trademark violation suit against Health Advocate, a client of the Valley Forge, Pa., firm Harding Earley Follmer & Frailey.

Healthcare Advocates is claiming the defendant’s lawyers used the Wayback Machine to “hack” into its website to obtain archived versions to which it had restricted access.

The Philadelphia company alleges that it had used a robots.txt file to make old versions of its website inaccessible to users of Wayback, but that the law firm made numerous search requests to get around the block. Healthcare Advocates is suing the law firm, as well as the Internet Archive, according to John Earley, a partner with the firm.

Earley said the firm used Internet Archive as “part of our routine investigation” after the Healthcare Advocates sued his client and that no “hacking” took place.

“After the suit was filed, we wanted to investigate to see how the plaintiff had used its alleged trademark in the past and what it had published on its website in the past,” Earley explained.

It’s unclear whether the robots.txt command failed or whether the firm performed its searches before the company placed the command on its web server. But in the time since the firm searched the Wayback Machine, Earley said the plaintiff has withdrawn its copyright infringement and misappropriation of trade secrets claims.

Questions or comments can be directed to the writer at [email protected].