Many people may not be aware of the Internet Archive or its nostalgic digital library, the “Wayback Machine.” The Wayback Machine is a service provided by the Internet Archive which allows users to visit and view archived versions of websites by simply entering the desired URL and selecting a date range. Internet Archive’s proclaimed mission to preserve the web’s electronic history may be noble, but there are also significant legal consequences for website owners and litigants seeking to authenticate a webpage containing facts necessary to support or defend a claim. For example, intellectual property owners can use the Wayback Machine to monitor potential infringers’ websites and potentially enforce their intellectual property rights. Website owners have limited options available to them for excluding their sites’ content from the Wayback Machine.

The main evidentiary issues that arise when submitting archived screen shots into evidence relate to hearsay and authentication. Thus, to be admissible, such evidence must fall within a hearsay exception and must be authenticated. To satisfy the requirement of authentication, the proponent of any proffered evidence “must produce evidence sufficient to support a finding that the item is what the proponent claims it to be.” (Fed. R. Evidence 901(a).)

            In a recent case[1] involving a dispute over terms of an online auction, the Fifth Circuit contemplated whether documents and/or other information obtained from the Wayback Machine are admissible as evidence and whether the district court abused its discretion by improperly taking judicial notice of the terms contained in such archived pages. The plaintiff in this case brought a breach of contract action in which there was a dispute relating to the terms of an online auction. The plaintiff contracted with an auction company to auction off a large housing module. The auction company hosted the auction on its website, but when auction participants clicked on the link to bid they were directed to Proxibid, a third-party website, where they could view the auction’s terms and conditions and place their bids. Among these terms was a declaration that bidders would be liable for only 20% of the bid price in the event of a breach of contract. Instead of using the website, defendant Davie Shoring, Inc. placed the winning bid of $177,500 via a telephone call with an employee of the auction company. After the auction concluded, Shoring refused to pay for the module when it proved difficult to remove from storage.

Plaintiff sought recovery of the full winning bid, while Shoring argued that the auction’s terms and conditions limited available damages to 20% of the winning bid price. Defendant introduced the auction terms and conditions in two forms: (1) as an internet printout labeled “Exhibit 41;” and (2) as an archived webpage from the Wayback Machine. The district court granted Shoring’s request for judicial notice of the archived webpage under Fed. R. Evidence 201 and limited the damages to 20%. Plaintiff appealed, arguing that the district court’s granting of judicial notice was improper.

The Fifth Circuit concluded that the district court erred in taking judicial notice of the auction’s terms and conditions because a private internet archive falls short of being a source whose accuracy cannot reasonably be questioned, as required by Fed. R. Evidence 201.

The Court further explained that sister circuits have allowed district courts to rely on archived webpages where someone with personal knowledge of the reliability of the archive service has authenticated the document pursuant to Fed. R. Evidence 901. Here, the proffered internet printout was not properly authenticated by anyone with the required personal knowledge. Therefore, the archived webpage was improperly admitted. Litigants desiring to admit archived websites into evidence must secure testimony from someone with personal knowledge of the reliability of the archive service and/or the archived webpage(s) at issue to be sure that critical evidence will be considered by the court.

[1] Weinhoffer v. Davie Shoring, Inc., No. 20-30568 (5th Cir. 2022)