[Ecommerce] WSJ online on use of Wayback Machine

[Manon Ress]

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Not Fade Away
Lawyers' Delight:
Old Web Material
Doesn't Disappear
Wayback Machine and Google
Archive Billions of Pages,
Including Deleted Ones
Playboy Protects 'Sex Court'
By DAVID KESMODEL
THE WALL STREET JOURNAL ONLINE
July 27, 2005; Page A1

Earlier this year, executives at Dell Inc. tried to shut down
DellComputersSuck.com, a Web site promoting an obscure brand of
computers. Dell's lawyers dispatched a stern letter, and within a few
days, the site's owner revamped it into an online discussion group
about computers. The old version disappeared from view.

The PC giant still wanted to seize the address, a move permitted
under rules governing the use of domain names. But Dell had to prove
to an arbitration panel it had been used in "bad faith." So Dell's
legal team turned to the Wayback Machine, a massive archive of Web
pages dating back nine years. There, Dell found copies of the deleted
site and was able to prove that its owner, Innervision Web Solutions,
had used it to redirect consumers to another Web address selling PCs
with names such as ZMachinez and Jetbook. In May, an arbitration
panel ordered the domain name be transferred to Dell.


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The Web, seemingly one of the most ephemeral of media, is instead
starting to leave permanent records. Through the Wayback Machine, and
similar services offered by companies such as Google Inc., it's now
easy to retrieve all kinds of online material, from defunct Web pages
to old versions of sites. While these databases have caught on among
historians and scholars, they are proving particularly enticing for
lawyers.

At some law firms, litigators now ask researchers, "can you do a
Wayback on that?" The archives are most attractive to specialists in
intellectual-property law -- in particular, areas such as domain-name
battles -- and have been used by companies as diverse as EchoStar
Communications Corp. and Playboy Enterprises Inc. In February,
recovered pages prompted a mistrial in a prominent murder case in
Canada.

The archive tools provide lawyers with a quick and inexpensive way to
unearth evidence that otherwise might not be available. Lawyers have
always been able to seek copies of old Web pages in a pretrial phase
known as discovery. But some parties might not save every version of
their Web sites and others might routinely get rid of stored pages.
Meanwhile, in domain-name disputes handled by arbitrators, there's no
discovery process.

Allison McDade, counsel for trademarks and copyrights at Dell, of
Round Rock, Texas, says the company frequently uses the Wayback
Machine and other computerized tools to protect its trademarks
online, as it did in its dispute with Innervision.

"That's the only thing they had on me," Edward Ziejka, Innervision's
owner, says of the Wayback Machine. He says he registered
DellComputersSuck.com with the intention of creating a complaint
forum for PC consumers but never got around to the task. He says he
redirected it to his own site "as a joke" and forgot about it until
Dell came calling.

The Wayback Machine (www.waybackmachine.org) is run by the Internet
Archive, a nonprofit group started in 1996 to build a massive digital
repository of cultural artifacts, including old TV shows, books and
live music recordings. Named for the time-travel device in the "Rocky
and Bullwinkle" cartoons, the free service searches for specific Web
addresses and pulls up multiple versions, sometimes dating back
years. The Wayback Machine has archived 40 billion Web pages using
computer programs, known as "bots," that crawl the Internet and make
electronic copies of information they come across.

Google's system, known as Google Cache -- "cache" is a computer term
for a place where information is stored -- works in a similar way,
although its archive is less extensive. On Google's results page,
users can click on a link to see how sites look whenever Google last
indexed them, something it does often.

Hacking Paris Hilton

Earlier this year, savvy Web users were able to view contact details
from a hacked cellphone belonging to heiress and party girl Paris
Hilton, which featured telephone numbers for celebrities including
musician Christina Aguilera and actor Vin Diesel. The information was
available in Google Cache several days after the U.S. Secret Service
forced sites to delete the information. A spokesman for the Secret
Service, which has authority to investigate computer-related fraud,
declines to comment. A Google spokesman also declines to comment.

Neither archive is exhaustive. Individual Web-site operators can ask
the Wayback Machine and Google to remove pages. Both services say
they'll comply if the person making the request demonstrates they
have authority over the Web site in question. In the wake of the
Sept. 11, 2001, terrorist attacks, for example, the Nuclear
Regulatory Commission asked Google to take certain Web pages out of
its cache.

Requests from third parties to remove information are generally
denied. The Wayback Machine makes exceptions in certain
circumstances, for example if the Web pages contain personal
information provided in confidence, such as medical data.

In addition, Web-site operators can prevent material from remaining
in the public domain by using a piece of computer code, known as a
robots.txt file, which stops bots belonging to the Wayback Machine
and regular search engines from copying pages.

One of the earliest cases to feature the Wayback Machine involved
EchoStar's Dish Network. Telewizja Polska USA Inc., the exclusive
provider in the U.S. of Polish-language channel TV Polonia, sued
EchoStar in 2002 for breach of contract, among other claims, in the
Northern District of Illinois. The company contended that Dish
Network had pitched itself using the TV Polonia brand even though a
marketing agreement between them had expired. EchoStar shot back in
court motions with evidence culled from the Wayback Machine. It
showed how Telewizja Polska's Web site had in the past touted its
connection to the Dish Network, also after the agreement had expired.

Telewizja Polska argued in filings that the exhibit shouldn't be
allowed because it hadn't been properly authenticated. A
representative of the Internet Archive signed an affidavit attesting
to the authenticity of the Web-page copies, and in a pretrial ruling
last fall, the judge said the evidence could be allowed. The case
hasn't yet gone to trial.

Attorneys at Playboy use the Wayback Machine "once every month or
couple of months," says Anamaria E. Cashman, Playboy's senior
intellectual-property counsel. Chicago-based Playboy keeps careful
watch of the Web to ensure that sites don't illegally use the
magazine's trademark bunny, or other images, even if they have since
removed the information. "We use it to verify the various excuses
that the infringers give us," Ms. Cashman says.

In 2003, Ms. Cashman says, the company cited the Wayback Machine
during a court hearing to prove that a defendant used the term "sex
court" on his Web site only after Playboy aired a TV show with the
same name. In his defense, the site operator asserted he had been
using the name months before. The case was settled midtrial.

Domain-Name Disputes

One of the Wayback Machine's most popular uses is in adjudicating
cases of cyber-squatting, a tactic in which people register Web names
associated with famous brands, either to piggyback on their fame or
make a quick buck by selling the domain name back to its owner.

British cellphone giant Vodafone Group PLC won a case in 2001, the
first year the Wayback Machine could be used by the public, against
the owner of the domain name Vodaphone.com. The cellphone company
said the domain owner had made a thinly veiled request to be
compensated for giving up her rights to the Web address. During the
arbitration proceedings, the owner denied any intention of selling
the name. Instead, she said she was offering a service to help
confused Web surfers.

The panel, which used the Wayback Machine to see how Vodaphone.com
had been used in the past, determined that she "intended to
misleadingly attract consumers" and had no legitimate purpose in
operating the site. As a result, the name was transferred to Vodafone.

Lawyers handling cyber-squatting cases now use the Wayback Machine as
a matter of course. "It's becoming almost an automatic," says Rich
Peirce, a lawyer who specializes in trademark and domain-name
litigation at Ballard Spahr Andrews & Ingersoll LLP in Philadelphia.
"A lot of times, [someone who registers a domain name] may not even
know of the existence of this tool, so you may in fact be able to
catch them in fabrication."

As the Wayback Machine catches on, it is stirring new kinds of legal
disputes. A Philadelphia company, Healthcare Advocates Inc., says it
used a robots.txt file to block access to older versions of its site.
When a law firm used the Wayback Machine to nonetheless access old
material from the site, Healthcare Advocates sued, alleging computer
fraud and violation of federal copyright law. In its suit, the health-
care firm contends the law firm "intentionally circumvented" the
robot.txt's blocking mechanism by making repeated search requests.
Healthcare Advocates is embroiled in a trademark dispute with a
client of the law firm, Harding Earley Follmer & Frailey.

Healthcare Advocates also sued the Internet Archive for breach of
contract. It alleges the Internet Archive failed, contrary to an
agreement, to block public access to the archived Web pages.

John Earley, an attorney at Harding Earley, calls the suit
"meritless" and says the firm's searches were routine. "There was no
hacking" of the site, he says. "They are trying to paint a picture
that we somehow did something out of the ordinary, and that is not
the case." Brewster Kahle, the director of the Internet Archive,
declines to comment, says his assistant, Beatrice Murch.

Murder in Canada

Archive tools played a pivotal role in a February trial of three
teenagers accused of murdering a 12-year-old Toronto boy. The
prosecution's star witness was a teenage girl who had taped a phone
call in which one of the accused bragged about the murder plan before
it was committed. She testified that she found his obsessions with
blood and gore immature. The defense argued that the boy was only
trying to impress her.

After the case was handed to the jury, a reporter for Canada's
National Post reported that the girl had posted comments on a Web
site for vampire enthusiasts in which she said her "likes" included
blood, pain, drugs and knives. The postings had been removed from the
original site and the reporter found them using Google Cache and the
Wayback Machine. The report prompted the judge to declare a mistrial
on the grounds that the witness's credibility had been damaged.

Dennis Lenzin, an attorney for another of the defendants, says the
defense "was completely taken aback" by the postings. He says he
researched the girl online using only Yahoo Inc.'s search engine and
didn't know of the archives' existence. The case "is a warning shot"
for all lawyers, he says.

A spokesman for the Ministry of the Attorney General for Ontario
declines to comment on the grounds that the case is going to be retried.

The issue of whether archived Web sites are admissible as evidence
hasn't been widely tested in criminal cases, where the burden of
proof is higher than in civil court, says Ken Strutin, director of
legal information for the New York State Defenders Association, a
group for criminal-defense lawyers. Lawyers seeking to submit
evidence from a cache system or the Wayback Machine would face "a
much more rigorous standard," he says.

Write to David Kesmodel at david.kesmodel@wsj.com



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