The Wayback Machine: Portal to the Internet’s Past, and Essential Business and Legal Tool

 

The World Wide Web has revolutionized the world as an information communication medium, but it has one significant drawback – no long-term memory. Once a web page is updated or removed, it disappears as if it was never there. The Wayback Machine, named after Mr. Peabody’s WABAC machine from Rocky & Bullwinkle and located at http://www.archive.org/web, was conceived to give the Web a long-term memory. It is a tool for looking at previous versions of a web page by viewing different iterations captured over time. Internet enthusiasts can easily spend hours peering back in time to what web pages looked like “back in the day.” For example, Google’s November 1998 search page boasted about having 25 million indexed pages, “soon to be much bigger” – it’s likely even Google could not imagine how true that would be!

The Wayback Machine is operated by the Internet Archive, a non-profit organization created in 2001 for the purpose of building and maintaining a historical record of the Web. It has been “crawling” web pages and other Internet-accessible content for archiving purposes since 1996, serving as an “archaeological history” of websites. As of March 5, 2017, the archive contains 279 billion web pages, but not everything on the Web is preserved in the Wayback Machine. It visits web pages for archiving purposes on a periodic basis, ranging from weeks to hours depending on the website; it respects requests not to archive web pages if specified by the website owner (e.g., by using a “robots.txt” file); it also does not fully archive dynamically generated web pages, such as those with web forms or JavaScript; and it does not archive websites which require a login.

Aside from letting people look back at their favorite website’s beginnings or remember what a favorite long-dead site was all about (I still love pets.com‘s slogan, “because pets can’t drive”), there are a number of practical business and legal uses for the Wayback Machine. These include:

Business Intelligence

  • Individuals and companies can use the Wayback Machine to search for information on persons, companies and products/services, especially where the companies, products or services no longer exist or the information sought about them is no longer available online. For example, if you are looking for information about a technology, product or program offered or licensed by your company years ago, and you can’t find information about in company records (the project manager has left the company, records have been purged under the records retention policy, the company that offers it is out of business, etc.) or want to supplement what you have located so far, the Wayback Machine may have an archived version of a page from your website with the information you’re looking for.
  • Similarly, if you are researching a prospective client, partner or acquisition target, looking at the client, partner or target’s historical websites through the Wayback Machine can yield valuable information, such as details on the history and development of the company and its products/services. This information can identify topics to ask about during due diligence, and can help you identify representations, warranties and covenants for inclusion in a sales, partnership or purchase agreement.
  • If you are researching a new potential executive or potential board member, use the Wayback Machine to look at historical bios on archived websites of his or her former companies as part of a thorough due diligence process or to verify information before including it on a company website or in a securities filing.

Contracts

  • The Wayback Machine can help in locating missing copies of license agreements, e.g., for previously licensed software such as a software program or font acquired years ago. If you can’t find the agreement and the company from which it was acquired no longer has it on their website or has gone out of business, the Wayback Machine may help you locate a copy of the agreement from the archived version of the website around or following the date on which you acquired the licensed material, enabling you to ensure you understand your or your company’s rights to the licensed materials.
  • The Wayback Machine can also help locate prior versions of online agreements, such as vendor agreements. For example, if you are renewing your agreement with a large vendor who sends you a new contract available on their corporate website, and you can’t find the old version of their contract you signed years ago, use the Wayback Machine to find the old version on an archived version of their website to generate a redline against the new agreement to facilitate your review of the new agreement.

Records Retention

  • If a company is reconstructing their historical records, the Wayback Machine is a great place to start. Companies often find that their historical records are spotty, especially in the time before a formal records retention process was put in place. Companies may not have a policy to archive and save information of historical or business value, which may be lost over time. Use the Wayback Machine to find and save historical versions of website policies such as Terms of Use, Privacy Policy, Terms of Sale, and other website disclosures, as well as historical information such as bios on former executives and directors and product information.

Intellectual Property and Litigation

  • The Wayback Machine can be an excellent source of information which may be valuable or essential to a party’s position in intellectual property disputes and litigation. For example, Wayback Machine pages can be used to establish or substantiate infringing activity by a person or entity. They have also been admitted in business litigation as far back as 2003 as evidence of a parties’ course of performance.
  • Pages from the Wayback Machine have been used in patent litigation as prior art, i.e., a printed publication describing an invention which publication is shared with a third party (e.g., made available to the public) prior to the date on which the “inventor” filed for patent protection for that invention, and have been used to establish a first date of use in commerce for trademark purposes. (It’s important to note that the Wayback Machine only shows the date on which a page was archived, not the date it was first made accessible online.)
  • The Wayback Machine is also an excellent source for strategic direction in discovery or when preparing a subpoena. Reviewing a discovery or subpoena recipient’s historical websites can help refine a company’s requests for production of documents, interrogatories or other discovery requests where the subject of the request is historical or aged information. It can also help identify potential witnesses who have knowledge as to facts central to the litigation, e.g., a former employee mentioned in a historical blog post.
  • Many federal courts have admitted Wayback Machine web pages in court, in some cases requiring an affidavit authenticating the archived web page, or in other cases where an employee of the company hosting the original web page attests to its authenticity as a true and accurate reproduction of the original page – the ideal person is the person who created the original page, or has first-hand knowledge of the original page. The Internet Archive can provide an affidavit authenticating Wayback Machine printouts for a fee as described on its website, but strongly recommends that a party first request judicial notice or ask the other party to stipulate to the authenticity of printouts from the Wayback Machine (this can be a good approach in arbitration). Note that seeking to admit Wayback Machine web pages can lead to evidentiary objections such as hearsay. Attorneys may want to consider asking their expert witnesses about their familiarity with the Wayback Machine and whether they have previous experience in testifying as to Wayback Machine pages.
  • A prominent example of the Wayback Machine’s value in litigation is the Kleargear.com case. Kleargear.com instituted a provision in its Terms of Use preventing a consumer from taking any action, including posting a review, that negatively impacts the company or its reputation, and imposing a $3,500 “fine” for Kleargear’s legal fees to sue the consumer for breach of the Terms of Use. John and Jen Palmer had a negative experience purchasing a product from Kleargear.com in 2008 and left a negative review. Years later in 2012, Kleargear.com demanded payment from the Palmers of the $3,500 fine if the negative review was not removed and turned the amount over to collections when it was not paid, resulting in an impacted credit rating for the Palmers. Aside the Palmers winning the inevitable litigation they filed against Kleargear.com, the lawsuit led to legislation in California in September 2014, and federal legislation in December 2016, prohibiting anti-disparagement clauses in consumer contracts. One of the key facts in the case and in press coverage was the fact that according to the Wayback Machine’s archived Kleargear.com site from 2008, the non-disparagement clause wasn’t even part of the Terms of Use at that time (it was added to the site later on).

Business Tools

  • The Internet Archive offers useful business tools. For example, consider the Wayback Machine’s 404 error page handler. The 404 error page handler enables a website to offer an archived version of a page from the Wayback Machine if a current page is not found and an archived version exists in the Wayback Machine. This can help reduce the impact of 404 errors for websites where content of web pages does not change too quickly, and where displaying an older page is better than no page.
  • The Internet Archive also offered an archiving service called “Archive-It” which companies can use to collect, catalog, manage, store, and provide 24/7 online search of and access to archived content collections. If your company or organization wants to preserve a collection of online content, consider using this service. Users include museums and art libraries, NGOs, colleges and universities, other private companies and non-profits.

Access the Wayback Machine at http://archive.org/web. Frequently-asked questions are located at https://archive.org/legal/faq.php. If you don’t find the Wayback Machine to be a useful business and legal tool, you can at least take a stroll down Internet memory lane.

Eric Lambert is Assistant General Counsel and Privacy Officer at CommerceHub, a leading cloud services provider helping retailers and brands increase sales and delight shoppers through supply solutions to expand product assortment, demand solutions to promote and sell products on the channels that perform, and delivery solutions to enable rapid, on-time customer delivery. Any opinions in this post are his own. This post does not constitute, nor should it be construed as, legal advice. Eric works primarily from his home office outside of Minneapolis, Minnesota. He is a technophile and Internet evangelist/enthusiast. In his spare time, Eric dabbles in voice-over work and implementing and integrating connected home technologies.

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