Internet Archive Ruled Inadmissible

A New York Federal judge has ruled that printouts from the Internet Archive are inadmissible as evidence in a court of law unless the party trying to enter it can produce “authenticating testimony from someone familiar with how the pages were created�?.

The judge’s order officially struck the pages from the record and removed the printouts from evidence.

This is, potentially, a major blow to n0n-repudiation services on the Web such as Numly, Registered Commons and Duly Noted. as this means that their primary function, providing proof of authorship, may be impractical for the court cases they are likely to be involved in.

What Happened

The case in question, Novak v. Tucows, revolves not around copyright issues, but on domain ownership. Novak was, and now again is, the owner of the domain “petswarehouse.com”. According to the Judge’s opinion (PDF), a legal dispute between Novak and a third party caused the domain to be transferred away from Novak’s control for a period of over a year between 2003 and 2004.

Novak then sued Tucows, his domain registrar, for allowing the transfer to take place saying that the lapse in control ruined his business and violated his trademark.

s part of the case, Novak, who is representing himself, submitted several print outs of pages from The Internet Archive in an attempt to show what various sites involved looked like on the days in question. Tucows, however, moved to strike that evidence and the judge granted that request saying that the printouts were inadmissible hearsay without “any authentication of plaintiff’s Internet printouts.”

Such authentication could take the form of either a sworn statement by anyone directly connected with the print outs, such as a staff member of the Internet Archive, or testimony from someone in such a position.

Though this is certainly a major development, it is very standard for evidence to have such a requirement in order to be admissible. It is not commentary on the Internet Archive, though some see it as such.

What it Means

First and foremost, this means that there must be a change in the way we, as Webmasters, look at non-repudiation services. Though these services can provide a great deal of value in the event of a copyright dispute, it is no longer a simple matter of taking printouts to the courtroom.

Getting such print outs admitted as evidence in an actual court case would involve either:

  1. Getting a sworn statement from an employee of one of the sites hosting the page or
  2. Having such a person testify in court about it.

Both of these processes can be expensive, especially when one looks at travel costs, and would be out of reach for most small claims copyright cases.

Even the certificates that many of the services, such as Registered Commons and Duly Noted, generate would not be considered primia facie evidence of authorship (meaning “on its face”) and would be equally inadmissible without some kind of corroborating testimony.

This isn’t the end of such services, they still have plenty of usefulness, but it will change the manner in which they are used.

How to Respond

Realistically, no one should have ever expected courts to accept the word of a non-repudiation service without at least some form of corroboration. Courts can not distinguish between good and bad services and would need at least some testimony in order to accept the output from such a service into evidence.

However, now that it is coming out more strongly in case law, it is time to consider taking steps to mitigate against this.

  1. Register with the U.S. Copyright Office: A certificate from the U.S. Copyright Office (USCO)is considered prima facie evidence of authorship. There is no need to subpoena anyone from the Copyright Office, no need get a deposition. The official certificate with the government seal is considered more than enough.
  2. Establish Relationships with Non-Repudiation Services: Using the Internet Archive is dangerous by itself because it can be very difficult to get someone from the organization to testify. If you know who is providing your service and how to get in contact with them, it would be much easier to get them to testify on your behalf.
  3. Develop A Backup: Non-repudiation services can be useful, but it is important to develop a back up plan to prove authorship. A local timestamp service may not carry much weight, but at least it could be admitted as evidence.

The bottom line is that, unless a case is worth enough money to warrant deposing a third party, likely in another part of the country, electronic non-repudiation services may not be of much value. This is unfortunate, but but not entirely unexpected.

Conclusions

This ruling, as logical as it may be, creates tremendous headaches for copyright holders. Until the USCO finalizes its long-promised Internet registration system, there is no immediate way to time stamp and verify authorship of a work in a way that will be accepted in a courtroom.

Though, clearly, electronic non-repudiation can have a great benefit in cases where the money involved is high, those cases would likely also require a USCO registration. Unless the USCO registration came after the infringing material first went up, it would seem that the electronic service would be superfluous.

However, these electronic services are still very useful in the court of public opinion. Though it is unlikely that a court case would hinge upon the evidence that they provide, they, especially the Internet Archive, have been used to separate the plagiarists from the original authors thus acting more as a protector of reputation than of ones full legal rights.

Still, it would be nice to see electronic non-repudiation services offer an assurance that they will be available to stand by their product under oath. Even though the cost factor might continue to be an issue, it would be assuring to know that, should a big enough dispute arise, the service will be there in your corner.

It might not be much, but it would be something.

Hat Tips:

Technology Law Update
Bureau of National Affairs
(pay)

35 comments
Jonathan Bailey
Jonathan Bailey

That is very good news and thank you for adding it to this post. I'll be sure to note that you would be willing to provide such help should it become necessary. Hopefully though, it never will be.

Thank you for your thoughts and assurances!

Jonathan Bailey
Jonathan Bailey

That is very good news and thank you for adding it to this post. I'll be sure to note that you would be willing to provide such help should it become necessary. Hopefully though, it never will be.

Thank you for your thoughts and assurances!

Jonathan Bailey
Jonathan Bailey

That is very good news and thank you for adding it to this post. I'll be sure to note that you would be willing to provide such help should it become necessary. Hopefully though, it never will be.Thank you for your thoughts and assurances!

Jonathan Bailey
Jonathan Bailey

That is very good news and thank you for adding it to this post. I'll be sure to note that you would be willing to provide such help should it become necessary. Hopefully though, it never will be.

Thank you for your thoughts and assurances!

Julian Boote
Julian Boote

Jonathan

We enjoyed reading your article.  It's only a pity we didn't know of its posting at the time, as we'd have been happy to comment sooner.

The point about the requirement of additional evidence such as affidavits regarding how services such as our works is entirely logical, and - in duly noted's case - it has never been our expectation to only provide a certificate upon a client's regsitration of their work.  We have not believed that, and only that, would be acceptable for a court.  In the event a client's work is infringed, our policy is at the very least to provide them their work plus a letter from the company, signed by one of its directors, verifying the date stamp of the registration, and outlining our processes and our technologies that enable us to do so.  We are also willing to sign affidavits about such at the client's request.  While this latter aspect would require additional charges (the notary's services, admin etc.) any such charges would not be prohibitive against its value as admissible evidence in court.

Of course, we can't make guarantees as to just what evidence a court may decide to accept or refuse, as that is simply out of our hands.

Julian & John Boote
Duly noted® Limited

Julian Boote
Julian Boote

JonathanWe enjoyed reading your article.  It's only a pity we didn't know of its posting at the time, as we'd have been happy to comment sooner.The point about the requirement of additional evidence such as affidavits regarding how services such as our works is entirely logical, and - in duly noted's case - it has never been our expectation to only provide a certificate upon a client's regsitration of their work.  We have not believed that, and only that, would be acceptable for a court.  In the event a client's work is infringed, our policy is at the very least to provide them their work plus a letter from the company, signed by one of its directors, verifying the date stamp of the registration, and outlining our processes and our technologies that enable us to do so.  We are also willing to sign affidavits about such at the client's request.  While this latter aspect would require additional charges (the notary's services, admin etc.) any such charges would not be prohibitive against its value as admissible evidence in court.Of course, we can't make guarantees as to just what evidence a court may decide to accept or refuse, as that is simply out of our hands.Julian & John BooteDuly noted® Limited

Julian Boote
Julian Boote

Jonathan

We enjoyed reading your article.  It's only a pity we didn't know of its posting at the time, as we'd have been happy to comment sooner.

The point about the requirement of additional evidence such as affidavits regarding how services such as our works is entirely logical, and - in duly noted's case - it has never been our expectation to only provide a certificate upon a client's regsitration of their work.  We have not believed that, and only that, would be acceptable for a court.  In the event a client's work is infringed, our policy is at the very least to provide them their work plus a letter from the company, signed by one of its directors, verifying the date stamp of the registration, and outlining our processes and our technologies that enable us to do so.  We are also willing to sign affidavits about such at the client's request.  While this latter aspect would require additional charges (the notary's services, admin etc.) any such charges would not be prohibitive against its value as admissible evidence in court.

Of course, we can't make guarantees as to just what evidence a court may decide to accept or refuse, as that is simply out of our hands.

Julian & John Boote
Duly noted® Limited

JB
JB

Chris,
I believe that Lars accidentally emailed me his reply. I'm going to forward you the relevant portions.

JB
JB

Chris, I believe that Lars accidentally emailed me his reply. I'm going to forward you the relevant portions.

JB
JB

Chris,

I believe that Lars accidentally emailed me his reply. I'm going to forward you the relevant portions.

JB
JB

Chris,

I believe that Lars accidentally emailed me his reply. I'm going to forward you the relevant portions.

JB
JB

Chris,I believe that Lars accidentally emailed me his reply. I'm going to forward you the relevant portions.

JB
JB

Chris,I believe that Lars accidentally emailed me his reply. I'm going to forward you the relevant portions.

Chris Matthieu
Chris Matthieu

How does this url service handle advertisements such as google ads in the page? I would imagine that the next time the page is loaded and the ads don't match, the hash will be invalid. Lars, can you clarify?

Chris Matthieu
Chris Matthieu

How does this url service handle advertisements such as google ads in the page? I would imagine that the next time the page is loaded and the ads don't match, the hash will be invalid. Lars, can you clarify?

Chris Matthieu
Chris Matthieu

How does this url service handle advertisements such as google ads in the page? I would imagine that the next time the page is loaded and the ads don't match, the hash will be invalid. Lars, can you clarify?

Chris Matthieu
Chris Matthieu

How does this url service handle advertisements such as google ads in the page? I would imagine that the next time the page is loaded and the ads don't match, the hash will be invalid. Lars, can you clarify?

Chris Matthieu
Chris Matthieu

How does this url service handle advertisements such as google ads in the page? I would imagine that the next time the page is loaded and the ads don't match, the hash will be invalid. Lars, can you clarify?

JB
JB

Lars,

This is a very interesting service, I'm going to see about emailing you in a few days to see about covering it here.

From what I've seen though, it looks great and very easy to use.

Thank you for posting!

JB
JB

Lars,

This is a very interesting service, I'm going to see about emailing you in a few days to see about covering it here.

From what I've seen though, it looks great and very easy to use.

Thank you for posting!

JB
JB

Lars,
This is a very interesting service, I'm going to see about emailing you in a few days to see about covering it here.
From what I've seen though, it looks great and very easy to use.
Thank you for posting!

JB
JB

Lars, This is a very interesting service, I'm going to see about emailing you in a few days to see about covering it here. From what I've seen though, it looks great and very easy to use. Thank you for posting!

JB
JB

Lars,This is a very interesting service, I'm going to see about emailing you in a few days to see about covering it here. From what I've seen though, it looks great and very easy to use.Thank you for posting!

JB
JB

Lars,This is a very interesting service, I'm going to see about emailing you in a few days to see about covering it here. From what I've seen though, it looks great and very easy to use.Thank you for posting!

Lars Bell
Lars Bell

Hi,

There does need to be a digital notary service. So we built one.

http://www.stayboystay.com
Free on demand archival service.

The standard output is a URL that reveals within it the original URL so no more opaque URLs. The date of the capture is also within the new URL.

In addition the new archive URL has a hash built into it. This provides a guarantee that the cached version has not been changed long after it was stored. Due do the cryptographic nature of the public domain hash it is computationally infeasible to change the content and then come up with the same hash. This means the content can be verified and any tampering by me, you or anyone can be detected by any 3rd party.

This service is free and simple to use. You can use it anonymously or you can sign up for a free account and get some additional administration functions.

I hope this service will solve at least some of the challenges you face.

Lars Bell

Lars Bell
Lars Bell

Hi,

There does need to be a digital notary service. So we built one.

http://www.stayboystay.com
Free on demand archival service.

The standard output is a URL that reveals within it the original URL so no more opaque URLs. The date of the capture is also within the new URL.

In addition the new archive URL has a hash built into it. This provides a guarantee that the cached version has not been changed long after it was stored. Due do the cryptographic nature of the public domain hash it is computationally infeasible to change the content and then come up with the same hash. This means the content can be verified and any tampering by me, you or anyone can be detected by any 3rd party.

This service is free and simple to use. You can use it anonymously or you can sign up for a free account and get some additional administration functions.

I hope this service will solve at least some of the challenges you face.

Lars Bell

Lars Bell
Lars Bell

Hi,
There does need to be a digital notary service. So we built one.
http://www.stayboystay.com
Free on demand archival service.
The standard output is a URL that reveals within it the original URL so no more opaque URLs. The date of the capture is also within the new URL.
In addition the new archive URL has a hash built into it. This provides a guarantee that the cached version has not been changed long after it was stored. Due do the cryptographic nature of the public domain hash it is computationally infeasible to change the content and then come up with the same hash. This means the content can be verified and any tampering by me, you or anyone can be detected by any 3rd party.
This service is free and simple to use. You can use it anonymously or you can sign up for a free account and get some additional administration functions.
I hope this service will solve at least some of the challenges you face.
Lars Bell

Lars Bell
Lars Bell

Hi, There does need to be a digital notary service. So we built one. http://www.stayboystay.com Free on demand archival service. The standard output is a URL that reveals within it the original URL so no more opaque URLs. The date of the capture is also within the new URL. In addition the new archive URL has a hash built into it. This provides a guarantee that the cached version has not been changed long after it was stored. Due do the cryptographic nature of the public domain hash it is computationally infeasible to change the content and then come up with the same hash. This means the content can be verified and any tampering by me, you or anyone can be detected by any 3rd party. This service is free and simple to use. You can use it anonymously or you can sign up for a free account and get some additional administration functions. I hope this service will solve at least some of the challenges you face. Lars Bell

Lars Bell
Lars Bell

Hi,There does need to be a digital notary service. So we built one.http://www.stayboystay.comFree on demand archival service.The standard output is a URL that reveals within it the original URL so no more opaque URLs. The date of the capture is also within the new URL.In addition the new archive URL has a hash built into it. This provides a guarantee that the cached version has not been changed long after it was stored. Due do the cryptographic nature of the public domain hash it is computationally infeasible to change the content and then come up with the same hash. This means the content can be verified and any tampering by me, you or anyone can be detected by any 3rd party.This service is free and simple to use. You can use it anonymously or you can sign up for a free account and get some additional administration functions.I hope this service will solve at least some of the challenges you face.Lars Bell

Chris Matthieu
Chris Matthieu

Jonathan,

Your article is well written. You have obviously done your homework. I do have one point though. I don't believe that the courts have every admitted evidence without sworn statements for non-official country documents.

I have always expected that our first two or three copyright disputes would involve depositions and sworn testimonies on policies, procedures, and security reviews. The first company to be tested and win may change the certificate theory so to speak. This may take some time as it may be on a country by country basis. Surely other countries' court systems do not have Copyright Offices and deal with similar matters regularly.

Numly has also taken an extra step in helping people prove that they are who they say they are by establishing Vouchor.com. Real world identities are certified and matched up with copyright submissions to establish credible and verifiable submissions. These steps plus out willingness to provide sworn testimonies should continue to provide security and trust in our services.

Keep up the good work!

Cheers,
Chris Matthieu, CEO
Numly, inc.

Chris Matthieu
Chris Matthieu

Jonathan,

Your article is well written. You have obviously done your homework. I do have one point though. I don't believe that the courts have every admitted evidence without sworn statements for non-official country documents.

I have always expected that our first two or three copyright disputes would involve depositions and sworn testimonies on policies, procedures, and security reviews. The first company to be tested and win may change the certificate theory so to speak. This may take some time as it may be on a country by country basis. Surely other countries' court systems do not have Copyright Offices and deal with similar matters regularly.

Numly has also taken an extra step in helping people prove that they are who they say they are by establishing Vouchor.com. Real world identities are certified and matched up with copyright submissions to establish credible and verifiable submissions. These steps plus out willingness to provide sworn testimonies should continue to provide security and trust in our services.

Keep up the good work!

Cheers,
Chris Matthieu, CEO
Numly, inc.

Chris Matthieu
Chris Matthieu

Jonathan,Your article is well written. You have obviously done your homework. I do have one point though. I don't believe that the courts have every admitted evidence without sworn statements for non-official country documents. I have always expected that our first two or three copyright disputes would involve depositions and sworn testimonies on policies, procedures, and security reviews. The first company to be tested and win may change the certificate theory so to speak. This may take some time as it may be on a country by country basis. Surely other countries' court systems do not have Copyright Offices and deal with similar matters regularly.Numly has also taken an extra step in helping people prove that they are who they say they are by establishing Vouchor.com. Real world identities are certified and matched up with copyright submissions to establish credible and verifiable submissions. These steps plus out willingness to provide sworn testimonies should continue to provide security and trust in our services. Keep up the good work!Cheers,Chris Matthieu, CEONumly, inc.

Chris Matthieu
Chris Matthieu

Jonathan,

Your article is well written. You have obviously done your homework. I do have one point though. I don't believe that the courts have every admitted evidence without sworn statements for non-official country documents.

I have always expected that our first two or three copyright disputes would involve depositions and sworn testimonies on policies, procedures, and security reviews. The first company to be tested and win may change the certificate theory so to speak. This may take some time as it may be on a country by country basis. Surely other countries' court systems do not have Copyright Offices and deal with similar matters regularly.

Numly has also taken an extra step in helping people prove that they are who they say they are by establishing Vouchor.com. Real world identities are certified and matched up with copyright submissions to establish credible and verifiable submissions. These steps plus out willingness to provide sworn testimonies should continue to provide security and trust in our services.

Keep up the good work!

Cheers,
Chris Matthieu, CEO
Numly, inc.

Chris Matthieu
Chris Matthieu

Jonathan,
Your article is well written. You have obviously done your homework. I do have one point though. I don't believe that the courts have every admitted evidence without sworn statements for non-official country documents.
I have always expected that our first two or three copyright disputes would involve depositions and sworn testimonies on policies, procedures, and security reviews. The first company to be tested and win may change the certificate theory so to speak. This may take some time as it may be on a country by country basis. Surely other countries' court systems do not have Copyright Offices and deal with similar matters regularly.
Numly has also taken an extra step in helping people prove that they are who they say they are by establishing Vouchor.com. Real world identities are certified and matched up with copyright submissions to establish credible and verifiable submissions. These steps plus out willingness to provide sworn testimonies should continue to provide security and trust in our services.
Keep up the good work!
Cheers,
Chris Matthieu, CEO
Numly, inc.

Chris Matthieu
Chris Matthieu

Jonathan, Your article is well written. You have obviously done your homework. I do have one point though. I don't believe that the courts have every admitted evidence without sworn statements for non-official country documents. I have always expected that our first two or three copyright disputes would involve depositions and sworn testimonies on policies, procedures, and security reviews. The first company to be tested and win may change the certificate theory so to speak. This may take some time as it may be on a country by country basis. Surely other countries' court systems do not have Copyright Offices and deal with similar matters regularly. Numly has also taken an extra step in helping people prove that they are who they say they are by establishing Vouchor.com. Real world identities are certified and matched up with copyright submissions to establish credible and verifiable submissions. These steps plus out willingness to provide sworn testimonies should continue to provide security and trust in our services. Keep up the good work! Cheers, Chris Matthieu, CEO Numly, inc.