The admissibility of Internet content as evidence has been at the heart of a lively debate in the legal landscape. We will discuss here the weight to be attributed to evidence obtained through the archive.org website managed by Internet Archive, a non-profit organization, which claims to have saved 450 billion web pages by means of its wayback machine. Indeed, this system provides snapshots of web page contents in a fairly reliable manner. Even though the contents of an URL address may have changed, the risk of changes may be avoided by the archive.org system, which allows for visiting a web page as it appeared years earlier.
At the domestic level, as already recounted on April 28, 2011, judges have displayed a marked reluctance vis-à-vis this type of evidence. Courts in France[1], the United States[2], as well as Germany [3] have rejected such evidence due to the lack of legality of the mechanism issuing archived material or the unreliability of the dates obtained. Conversely, supranational legal bodies (WIPO Arbitration center, European Patent Office) have oft been more flexible on this point.[4]
While no evolution has been noted on the domestic front, the case-law of the European Patent Office has accommodated a recent change in this arena. On May 21, the Board of Appeal of the EPO (T 0286/10) delivered a judgment regarding wayback machine archives in an objection to a patent case. In the case at hand, the applicant challenged the decision of the Board in that the latter maintained the patent as granted.
The Board of Appeal explicitly demarcated its stance from the T1134/06 judgment which required produce an authentication result issued by the archive issuer. It is henceforth no longer required, “there is no legal basis for a regime different from that governing the disclosure of the prior art in general.” In the judgment of May 21, the Court, in support of its stance, cited judgments T 2339/09 and T 990/09 which also depart from the T1134/06 decision.
The Board of Appeal deemed that the dates provided by the Internet Archive need not be considered inaccurate, leaving it to the defendant to prove “new evidence to shift the burden and provide evidence to the contrary to rebut the presumption.”
The Board further specified that,although incomplete, the archive library, by virtue of its popularity and reputation, “provides enough safeguards to benefit from a presumption of [being a] reliable and trusted source of information”. The burden of proving any contrary evidence is thus shifted unto the opponent.
This judgment takes a leap further as far as accepting evidence from an archive system and the legitimacy accorded to the website archive.org.is concerned. Nevertheless, the views of domestic courts will take a (much) longer time to change, particularly in France, given that they still view the snapshot issuer as broadly illegitimate.
[1] CA Paris, 2ème Ch., 2 July 2010, « Saval, Établissements Laval c/ Home Shopping Service (HSS) »
[2] « Novak v. Tucows », No. 04-CV-1909, 2007 U.S. Dist. Lexis 21269 (E.D.N.Y. March 26, 2007) ; « Telewizja Polska USA, Inc. v. Echostar Satellite », Memorandum Opinion and Order, Case No. 02C3293 (N.D. III. Oct. 14,2004)
[3] BPatG 17W (pat) 1/02
[4] http://www.wipo.int/amc/en/domains/decisions/html/2008/d2008-1768.html and judgment of EPO T 1134/06