Many of you will remember Sherman (the little boy) and Mr. Peabody (the dog with the PhD) from the recurring cartoon series, Peabody's Improbable History. These segments ran in the now famous Rocky and Bullwnkle Show. Don't remember? Try these two Wikipedia articles on Mr. Peabody and the Rocky and Bullwinkle Show. Mr. Peabody was always using the Wayback Machine to transport Sherman and himself back in time to take a first-hand look at history.
There is another Wayback Machine available for use today. This one is from the Internet Archive right here. Using this specialized Internet search engine you can go back and find previous iterations of webpages. Just put the current URL into the search box and it will take you back to what that website looked like on a particular date. This can be done because the Internet Archive is constantly crawling the Internet and (no surprise here) archiving its contents.
The use of the Archive can be quite valuable in establishing, inter alia, what the weather was like on a particular day, or what a particular company might have posted on their site as an inducement to consumers to buy their products. For example, during a lawsuit regarding coverage it might be very interesting to see what kinds of claims an insurance company might have made on its website about that kind of coverage.
How best to use this material in court? Check out this post by Paul Lomio of the Stanford Law Library. Lomio refers to a forthcoming Note by Deborath Eltgroth titled Best Evidence and the Wayback Machine: A Workable Authentication Standard for Archived Internet Evidence to be published in the Fordham Law Review, also available on SSRN as a working paper here. From the abstract:
"The Internet Archive indexes and stores Web pages to allow researchers to access discarded or since-altered versions. In the legal profession, archived Web pages have become an increasingly helpful form of proof. Intellectual property enforcers have recognized the value of the Internet Archive as a tool for tracking down infringers, but evidence from the Internet Archive has rarely been admitted at trial. This Note surveys the handful of judicial opinions and orders that comment on the admission of Internet Archive evidence and explores the conflict underlying these approaches. As an alternative to the courses they have taken, this Note urges courts to treat the introduction of archived Web pages as implicating a best evidence issue in addition to an authentication question."
This is just another example of bringing the web into the courtroom in a way that complies with the rules of evidence.
