Internet Archive's Web Page Snapshots Held Admissible as Evidence

The Internet Archive (IA) is a non-profit effort to preserve Internet sites and other digital media and make them available online. IA’s spiders regularly crawl the World Wide Web, making copies of web pages and storing them permanently in an enormous digital archive. Using the "Wayback Machine", one of the Archive's popular services, users can input the address of a web page and call up a series of dated copies, allowing them to see what the page contained at the times it was accessed by the IA spider.
Polska is the American provider of TV Polonia, a Polish-language television channel. According to its pleadings in the case, it had reached a deal with EchoStar, which operates the Dish Network satellite TV service, to provide TV Polonia to Dish Network. The contract included marketing rights, giving EchoStar the right to use Polska’s trademarks to sell subscriptions to its television service. The deal was scheduled to expire in stages: absent a renewal, EchoStar’s marketing rights would expire in April of 2001, and programming would stop a year afterwards. The deal was not renewed, and Polska alleges that EchoStar continued to use the “TV Polonia” name to market its satellite service after its rights to exploit that trademark had expired. EchoStar pointed out that Polska seemed to have no problem with advertisements stating that TV Polonia could be found on the Dish Network, since Polska had one on its own website after the expiration of marketing rights. EchoStar offered IA snapshots dated to various times in 2001 as proof of the past content of Polska’s website. As part of a series of motions in limine, Polska attempted to suppress the snapshots on the grounds of hearsay and unauthenticated source.

Magistrate Judge Arlander Keys rejected Polska's assertion of hearsay, holding that the archived copies were not themselves statements susceptible to hearsay exclusion, since they merely showed what Polska had previously posted on its site. He also noted that, since Polska was seeking to suppress evidence of its own previous statements, the snapshots would not be barred even if they were hearsay. Over Polska's objection, Judge Keys accepted an affidavit from an Internet Archive employee as sufficient to authenticate the snapshots for admissibility.


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