[I haven't been able to second-source this yet, so treat with some skepticism for a bit.]
Cyberlaw is reporting on a case in which The Internet Archive (TIA) was used as an evidentiary source. On the surface this seems like a trivial matter, but questions of what will be acceptable as evidence in a courtroom proceeding are in fact quite important.
Within the relatively recent past we've seen such changes as the discrediting of lie detectors and the admission of DNA evidence changing the face of court proceedings. The questions of what constitutes valid evidence for Web content are not even vaguely understood.
Take your typical Web page. First of all, we understand that it changes over time. The Wayback Machine recognizes this and provides time-sequenced information on pages.
Other changes within the Web are too ephemeral to be captured by an archive with potentially extensive delays in page revisits. Many sites (e.g. NTK) make a practice of snapping screen shots of amusing or embarrassing gaffes that make it out onto the Web. Other content that is seen by humans is not available to robot gatherers due to exclusion rules, login/subscription requirements, or other access constraints. Clearly TIA is not the end point for these kinds of problems.
Think about the problems of trying to prove that a defendant offered your copyrighted content for sale on eBay. What, exactly, would you be able to submit to the court in evidence to support your case? How would you defend yourself against such evidence, assuming you believed the evidence had been faked?
I have no good answers to these questions, but I'm betting we'll have to develop them pretty quickly.
[Disclaimer: I work for a company that makes a lot of money from, among other things, supplying systems used to produce evidentiary electronic messages, particularly emails, in court and regulatory cases. I am not speaking here or elsewhere as an employee of any organization. However, my experience in this field does lead me to be a little incredulous of the judges' assertions and acceptance of a TIA employee's affidavit as sufficient authentication, without any accompany documentation of the relevant storage and retrieval practices.]Posted by dr. wex at November 19, 2004 09:53 AM