Commercial Litigation and Arbitration

Internet Archive (Wayback Machine) Printouts Received in Evidence on Preliminary Injunction Motion Evidently without Further Authentication — Courts Warming to Reliability

Keystone Retaining Wall Sys., Inc. v. Basalite Concrete Prods., LLC, 2011 U.S. Dist. LEXIS 145545 (D. Minn. Dec. 19, 2011):

As evidence, Basalite relies on printouts of Keystone's website dated 2006 and retrieved from the Internet Archive (or "Wayback Machine"); both patents were filed on November 7, 2008, so an anticipatory reference from 2006 would be invalidating. ***

Footnote 9. Keystone also argues that the pictures are not sufficiently authenticated because Basalite has not offered evidence of the reliability of printouts from the Internet Archive.... For purposes of Keystone's preliminary-injunction motion, the Court rejects the argument. The Internet Archive has existed since 1996, and federal courts have regularly accepted evidence from the Internet Archive. See, e.g., St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, No. 8:06-CV-223, 2006 U.S. Dist. LEXIS 28873, at *6, 2006 WL 1320242, at *2 (M.D. Fla. May 12, 2006) (concluding that a printout from the Internet Archive could be authenticated by way of an affidavit from a "representative of Internet Archive with personal knowledge of its contents, verifying that the printouts Plaintiff seeks to admit are true and accurate copies of Internet Archive's records"); Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627 (E.D. Pa. 2007) ("By way of background, the Internet Archive is a nonprofit organization that has created an online library of digital media in an effort to preserve digital content for future reference. Its digital database is equivalent to a paper library, but is filled with digital media like websites instead of books. The library includes a collection of chronological records of various websites which Internet Archive makes available at no cost to the public via the Wayback Machine. The library's records include more than 85 billion screenshots of web pages which are stored on a computer database in California. Internet Archive's database provides users with the ability to study websites that may have been changed or no longer exist.").

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