Company websites often play a vital role in business litigation, both as a source of biographical and background information, as well as intellectual property disputes. Some lawsuits involve content that was displayed on the website at one point in time but is no longer available. A resourceful method of obtaining records of historical website content is the Internet Archive’s Wayback Machine. The Wayback Machine is a webcrawler (search engine) that searches out and records website content. Internet Archive’s webcrawler records have been recognized by several courts as a reliable and accurate source. Several courts have taken judicial notice of Internet Archive’s records to resolve controversies when the parties dispute what a public website stated historically. Peter Mavrick is a Fort Lauderdale business litigation lawyer, and also represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.
Courts generally treat the Internet Archive’s records differently than records collected from other websites. “[T]he federal courts have recognized that Internet archive services, although representing a relatively new source of information, have sufficient indicia of reliability to support introduction of their contents into evidence, subject to challenge at trial for authenticity.” Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384 (W.D. Mich. Oct. 31, 2011). A federal court described the Wayback Machine:
The third party donating the material is an automated software program that is designed to capture the information on a website as it appeared on the date the crawler visited it. The crawler does not exercise any “decisionmaking” power as to what will be preserved but simply takes a snapshot of a website at a particular point in time. If the crawler had the discretion to alter the impression it captured of a website, the Wayback Machine would defeat its own purpose of archiving images on the Internet.
Abu-Lughod v. Calis, CV 13-2792 DMG (RZX), 2015 WL 12746198 (C.D. Cal. May 20, 2015).
Internet Archive’s records have been introduced in business litigation as a reliable and authentic source of information. Some courts have sua sponte (on its own motion) taken judicial notice of its records without an evidentiary foundation or authentication. “No evidence was introduced as to the date the page was created, but the Court takes judicial notice of the Internet Archive’s history of the page, available at [website URLs omitted], which indicates that the page was created on July 31, 2014, after both articles were published.” Tobinick v. Novella, 9:14-CV-80781, 2015 WL 1526196 (S.D. Fla. Apr. 2, 2015). “The Court recognizes that the conversation at issue occurred in April, 2006. A [cursory] search of the Wayback Machine, […] reveals that the phone listing for “Habashy Michel MD PA” on February 2, 2006 was 352-259-997.” Lee v. Michel Habashy, MD, P.A., 609CV671ORL28GJK, 2010 WL 11626756 (M.D. Fla. Aug. 30, 2010).
In the case of Distributorsoutlet.com, LLC v. Glasstree, Inc., 11CV6079PKCSLT, 2016 WL 3248310 (E.D.N.Y. June 10, 2016), the defendant contended that a forum selection clause was part of the terms and conditions that were included on defendant’s website when the plaintiff customer first purchased defendant’s services. The purpose of forum selection clauses is for the parties to agree in advance that any business litigation relating to that contract will be resolved in a specific forum. The plaintiff challenged this contention and claimed that the forum selection clause had been added into the terms and conditions after the plaintiff had agreed to the terms and conditions. To resolve the matter, the court sua sponte took judicial notice of the Internet Archive’s records and permitted the defendant an opportunity to challenge their authenticity. Distributorsoutlet.com, LLC held that:
Although Plaintiff offers no evidence of the Terms of Usage that existed in 2006, the Court notes that the Terms of Usage submitted by Defendants is indeed dated “3/23/2012.” The Court took the additional step of searching for historical versions of the Terms of Usage used by Defendants at the URL “http://glasstree.com/hosting_terms.asp” using the Internet Archive Wayback Machine (https://archive.org/web/). That search reveals that snapshots of the Terms of Usage contract as of July 19, 2006 and August 13, 2006—roughly around the time that the two contracts in question were executed—did not, in fact, contain a forum selection clause. Rather, it appears to the Court that the clause was not added until some time between March 14, 2008 and May 9, 2008.
Courts taking judicial notice of the Internet Archive’s records in business litigation is not uncommon. “This Court follows the lead of the overwhelming number of courts that have decided the issue and takes judicial notice of the contents of WayBack Machine evidence because they ‘can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned’.” E.g. Pohl v. MH Sub I, LLC, 4:17CV181-MW/CAS, 2019 WL 5257937 (N.D. Fla. Oct. 7, 2019).
Peter Mavrick is a Fort Lauderdale business litigation attorney who also practices business litigation in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.