Wayback Machine — Authenticating Affidavit from Internet Archive Employee Sufficient to Raise Genuine Issue of Material Fact as to When Image First Published

Foster v. Rodriguez, 2015 U.S. Dist. LEXIS 22590 (S.D.N.Y. Feb. 25, 2016):

The question, then, is whether there is a genuine dispute of material fact as to when the photograph was first published. Defendants offer Lee's declaration and a supplemental internet search as evidence that the photograph appeared on one of Lashpia's websites in December 2012. Foster offers evidence from the "Wayback Machine"--a service that archives webpages as they existed at a given time--that the image did not, in fact, appear [*17]  on the websites until much later. Notwithstanding potential evidentiary problems with the Wayback Machine, it is clear that Foster could present admissible evidence at trial sufficient to raise a genuine dispute of material fact as to when the photograph appeared on the internet. See, e.g., Karén Gazaryan, Authenticity of Archived Websites: The Need to Lower the Evidentiary Hurdle Is Imminent, 39 Rutgers Computer & Tech. L.J. 216, 229 (2013); Deborah R. Eltgroth, Best Evidence and the Wayback Machine: Toward A Workable Authentication Standard for Archived Internet Evidence, 78 Fordham L. Rev. 181, 184 (2009); Matthew Fagan, "Can You Do A Wayback on That?" the Legal Community's Use of Cached Web Pages in and Out of Trial, 13 B.U. J. Sci. & Tech. L. 46, 56 (2007). Particularly because Foster has presented an affidavit from an employee of Internet Archive--the foundation that operates the Wayback Machine--the Court is persuaded that Foster would be able to present relevant, authentic, non-hearsay evidence in the form of an archived webpage produced by the Wayback Machine. There is a genuine issue of material fact as to when the photograph was first published. Summary judgment on this issue is therefore denied.

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