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
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