Are Screenshots from the Wayback Machine useful as evidence?

[Jerry Witt (mcfilms)]

Today I came across an interesting article about the Waybackmachine on Wikipedia:
http://en.wikipedia.org/wiki/Wayback_Machine

It said:

"In an October 2004 case called "Telewizja Polska SA v. Echostar Satellite", a litigant attempted to use the Wayback Machine archives as a source of admissible evidence, perhaps for the first time. Telewizja Polska is the provider of TVP Polonia and EchoStar operates the Dish Network. Prior to the trial proceedings, EchoStar indicated that it intended to offer Wayback Machine snapshots as proof of the past content of Telewizja Polska’s website. Telewizja Polska brought a motion in limine to suppress the snapshots on the grounds of hearsay and unauthenticated source, but Magistrate Judge Arlander Keys rejected Telewizja Polska’s assertion of hearsay and denied TVP's motion in limine to exclude the evidence at trial.[15] However, at the actual trial, district Court Judge Ronald Guzman, the trial judge, overruled Magistrate Keys' findings, and held that neither the affidavit of the Internet Archive employee nor the underlying pages (i.e., the Telewizja Polska website) were admissible as evidence. Judge Guzman reasoned that the employee's affidavit contained both hearsay and inconclusive supporting statements, and the purported webpage printouts themselves were not self-authenticating.[16]"

So based on this, it seems to me that the troll's use of the wayback machine (or Internet archive) is limited. I suppose they'd have a hard time proving either the length of infringement OR even usage with shots from Archive.org. I guess this is why they are so anxious to have you tell them how long you used an image.

[Robert Krausankas (BuddhaPi)]

Good find MC!! This could also potentially effect picscout I would think..Picscout scours your server for images, finds one, then finds a page on which the image is used, thus creating a screen capture we see in letters. This screenshot does not prove that the page in question was a "public facing" page, not does it prove that said page could be reached thru any navigational elements contained within the site.. Hell I have loads of pages on my server that are no longer used and not tied to the site in any way shape or form...this could certainly be a valid argument in my eyes.

[Peeved]

I guess this is why they are so anxious to have you tell them how long you used an image.

Just one more reason to not engage in any dialog what so ever with them. Do not tell them a damn thing! Ask for proof of claim....period....end! Thanks for the post McFilms.

[SoylentGreen]

This is a great posting, MC. Thanks.  The case is from Poland, right?
Too bad that this wouldn't be a solid precedent for folks residing in the US.
I guess that this really shows that it sometimes pays to just try an idea.
I would have assumed that the archive would have been pretty solid evidence.
One just never knows.

S.G.

[Moe Hacken]

That's an interesting find, Jerry. It would be good to have a precedent like that in the U.S. Perhaps no one has thought of challenging Wayback Machine in a court yet, or perhaps it has been tried unsuccessfully.

As Robert said, if Wayback Machine's printouts were ruled not to be self-authenticating in the U.S., the ruling could apply to PicScout or other such content scrapers. Of course, that's all conjecture.

[Greg Troy (KeepFighting)]

The part that I found interesting and caught my eye was where it said that even the purported webpage printouts themselves were not self authenticating. To me that means that the screenshot Getty send you don't mean a darn thing or am I reading that wrong.

Again it might be an angle to attempt the next time Getty takes someone to court here in the states and has screenshots as evidence.

[SoylentGreen]

Good point, Greg.
It would be quite funny if Getty had to bring in a laptop to the court, and call up the actual website to prove their assertions.
By then, any alleged infringement would be gone of course.
lol.

S.G.

[Jerry Witt (mcfilms)]

SG -- It's worth mentioning that Telewizja Polska is an Illinois corporation. I think this case was all in the US.

[SoylentGreen]

U so funny, MC.
http://en.wikipedia.org/wiki/Telewizja_Polska

ahh... I guess that you mean "Echostar Satellite"?



If so, then what a great precident.  Perhaps, one of the greatest finds EVER?

S.G.

[Moe Hacken]

SG -- It's worth mentioning that Telewizja Polska is an Illinois corporation. I think this case was all in the US.

Indeed:

http://scholar.google.com/scholar_case?case=15389748576569562202&q=Telewizja+Polska+SA+v.+Echostar+Satellite&hl=en&as_sdt=2,5&as_vis=1

[SoylentGreen]

Wow... who knew?
Here's my face right now:



S.G.

[Moe Hacken]

So this ruling could possibly affect Wayback Machine printouts or other type of printouts offered as evidence by "strategic litigants," in the United States, as of right now. Perhaps no one has tried to go there since this case from 2005. Perhaps I'm wrong about that, further research would be required. I'll see what I can find.

I wonder if the Aloha Plastic Surgery legal team is thinking along these lines at all. Hawaii's court may take an Illinois precedent in consideration.

This may just be one the greatest finds ever, Jerry.

[Moe Hacken]

Jerry, I found a very interesting article about this very same topic:

http://tinyurl.com/84ldxbl

[Greg Troy (KeepFighting)]

Thank you for clarifying that Jerry, the fact that this was a US case makes this awesome news and will make it just that much harder for the copyright trolls!

SG -- It's worth mentioning that Telewizja Polska is an Illinois corporation. I think this case was all in the US.

[lucia]

Ahh! I see why the Wayback machine might not be good evidence.

The thing to remember: Images in a web site appear there through links.  The wayback sometimes changes the links and sometimes does not.  In both cases, there can be issues with using the screen shot as evidence of what happened in the past:

The links on archived Web sites may remain active
but link to different material from that associated with
the Web page at the time that it was archived. The linked
material may be to current sites or to other stored link sites
from a different time. Indeed, links may connect to current
active sites and show current banner advertisements
available at the site, rather than linking to sites as they
existed at the date of capture. ...

... In
short, the process of copying a Web site for archiving may
result in changes to the extent that the archived Web site
may not show accurately the links that existed at the time
shown for the Web site storage date. The Alexa Internet
crawler technology rewrites the original link code in html
to re-direct links to current or stored links.

The fact that the wayback sometimes changes the html of the page -- and in particular the links--would matter in court.  In cases about images, the images only appear through links. So, this can matter.  But how exactly it mattered will depend on what happened--- still.  It's interesting. Wayback machine evidence might not hold up.