
Federal Court accepts Wayback Machine as evidence of content on a specific date - anaxag0ras
https://twitter.com/paulmcgorrery/status/1178561480385421312
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ksaj
A couple decades ago I used Wayback Machine to win a DMCA takedown case that
almost bankrupted me.

An American military contractor (I'm Canadian) stole a large chunk of content
from my site, search/replaced my company name for theirs. They even made
really slick PDF files complete with graphics (that were possibly actually
theirs) to make it look legit. When confronted, their legal dept claimed I
actually stole it from them. I was _FUMING_!

The worst thing was that when confronting their lead techie, I asked him to
describe a particular bit of terminology that is very specific to me and my
business. He claimed he couldn't because it was proprietary. Of course it was
because he simply didn't know anything about that particular term. I guess he
thought that would drag things out long enough that I'd eventually drop it. I
didn't.

I then demonstrated that this bit of terminology is attributed to _me_ in a
published IEEE document that also predated the content appearing on his web
page. But for whatever reason, their web page and all their marketing
collateral said that _they_ created it all.

Needless to say, they ended up removing the content and paying damages. I
couldn't afford to take it further, and given their significant wealth, would
have easily quashed me if I tried. I won and got paid for it, so I accepted it
was probably the most I could possibly get.

I got the idea based on the "poor man's copyright," which is when musicians,
for example, postal mail lyrics to themselves and then store the unopened
envelope in a safe in order to prove, via postmark, that the copyright date is
legit.

I suspect github could also be used this way. Anything that keeps a strongly
maintained timeline.

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bradknowles
So, in the case of NTP vs. RIM, part of the legal battle was fought in the UK.
I was called in as an expert witness on a detail of minutia, as to when
certain things had been said publicly, which could be used as evidence of
prior art.

They had pulled up copies of the comp.mail.sendmail FAQ, for which I was the
maintainer in 95-96. They asked me if a certain section of the document they
found was a clear and accurate representation of the way the document actually
existed at the time. They contacted me and not Eric Allman, because his role
in the maintenance of the FAQ didn’t cover the period of time they were
interested in, even though I believe he actually wrote that section years
earlier. What was important to them was the state of the document at the time,
not who wrote what when.

I want back to various archive sources, and confirmed that what they had
appeared to me to be an accurate copy of the file from that point in time.

I was literally one day away from having to appear in UK court through a
videoconference facility at the offices of a local law firm here in Austin,
TX, where I was actually going to testify to that statement. But they settled
the case instead.

Ultimately, I think the critical part of the process is to get an expert in
the field to be willing to testify as to the material you are showing them,
and not so much the source of that material.

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bradknowles
In order to have the systems testify for themselves, they have to use forensic
methods throughout. As much as I love them, that’s not the Wayback Machine.

Failing that, I don’t see any alternative to having an expert human who can
testify that the material presented to them by the Wayback Machine is actually
an authentic representation of the content from the time.

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mikece
I can see where it could be argued that content in the Wayback Machine could
be edited before being presented as evidence; I know the current case
specifically excludes the question of whether the content in the scrapes was
edited or not bu what would be a viable scheme for verifying that the content
in a scrape hasn't been edited?

