Don’t get framed by Wayback frames!
Earlier articles showed how The Wayback Machine (www.archive.org) may be used in establishing a date of public availability for a particular internet page, and which may be usable in legal proceedings. However, certain pitfalls exist and need to be avoided in order for the evidence to withstand the scrutiny of the court or of the other party.
One trap relates to the use of frames. Frames are used to display different information in a side-by-side arrangement in a single browser window.
The standard affidavit offered by The Wayback Machine states that the date assigned to an internet page by the Internet Archive applies to the frameset as a whole, and not to the individual pages within each frame. As the different frames may be archived in several passes by the crawler, the different frames of a single internet page may not have been archived on the same date.
The authors encountered an archived copy of a webpage having a certain archiving date. The authors found that this same page could be viewed in a frame having an earlier archiving date, 11 months earlier. It became clear that the archiving date assigned to the older internet page, is actually the archiving date of the frameset as a whole, i.e. a frameset which reserved one frame for a menu and another larger frame to fill in substantive content. The menu itself, and the substantive content were however not yet archived on the same date as the older page containing the frameset, and hence could not be proven as being publicly available on that older date. The substantive content of the frameset was cited against a patent. The Wayback Machine report for the entire page containing the substantive content suggested that the content had been first archived before the filing date of the patent. The substantive content would thus have formed state of the art against the patent. However, it turned out that the substantive content itself was only archived later, i.e. it had been first archived only long after the filing date of the patent. The substantive content thus had to be excluded from the state of the art for the patent. The example illustrates how important a correct reading of a report from The Wayback Machine may be.
In a subsequent article, the authors will elaborate on the pitfall with an internet page making use of objects.
Authors: Jurgen Duyver and Raf Caers - Publisher: Managing IP
