Lawyers Can Go Way Back With The Wayback Machine

• Published date: 12 May 2021
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Technology, IT and Internet, Copyright, Trademark, New Technology
• Law Firm: Siskinds LLP
• Author: Ms Dawn Sullivan Willoughby and Savvas Daginis

Most people who've been through litigation know that once it has started, you can't just grab a shredder and get rid of your bad documents. Why? Legally speaking, the parties have a duty to preserve their documents. When dealing with paper, shredding has a permanent effect. Electronic documents are far more pervasive than their physical counterparts and are more difficult to erase.

A common saying has developed: once something is on the internet, it is there forever. Like most sayings, this isn't 100% accurate. What is accurate is that once something is on the internet, it can be extremely difficult and in some cases nearly impossible to remove.

What happens when an opposing party has changed their website's content frequently over the years? What if key evidence could be information formerly found on that website? The first step would be to ask the opposing party whether they still have that information. But what if they deleted that information long ago?

Step in the Wayback Machine

This website is not an actual time machine, and so you do not need to worry about Schwarzenegger coming through it. Rather, it is more akin to a museum containing an archive of websites as they appeared in different years. Since 1996, this website, which is operated by the Internet Archive, has been searching all accessible webpages ("crawling" in internet lingo) and saving these webpages. It then repeats this task on different days, weeks, and months. The Wayback Machine presents all the saved webpages in a timeline. For example, here is how the Canadian Broadcasting Corporation's website looked on March 2, 2000.

Why is this important? In litigation, crafty people have sought to use the Wayback Machine to obtain a snapshot of how a website appeared at a specific point in time. Then, the person would ask the court to accept and recognize the information on the snapshot without the need to prove that the information was actually there at that time through witnesses. This process is called "judicial notice".

For example, imagine Miles Dyson decided to leave Skynet to start a new Artificial Intelligence company. He creates a website and uses an enormous pyramid as his logo. Further imagine that Skynet sends a demand letter to Miles to stop using that logo, and Miles complies. But by then, it was too late, and Skynet suffered a loss of business. Skynet decides to sue Miles for using their logo without consent. Instead of having to find a paper trail and muster witnesses who saw Miles' website, Skynet could simply ask the court to use the Wayback Machine to see that Miles' website used the logo.

Using the Wayback Machine in court is almost as...