Federal Judge Says Internet Archive's Wayback Machine A Perfectly Legitimate Source Of Evidence
Those of us who dwell on the internet already know the Internet Archive's “Wayback Machine” is a useful source of evidence. For one, it showed that the bogus non-disparagement clause KlearGear used …
Context & Ripple Effects
This 2016 ruling is the friendly face of a long court relationship: a federal judge formally blesses the Wayback Machine as evidence, citing its role in exposing KlearGear's bogus non-disparagement clause. It stands in sharp contrast to the other side of the ledger, where judges have repeatedly ruled against the Archive itself — most notably the publishers' copyright win over Controlled Digital Lending and the subsequent loss of IA's appeal in that ebook-lending case.
The tension between those two roles defines the Archive's position: courts find its records trustworthy enough to decide disputes, while the same nonprofit fights existential copyright battles funded by Brewster Kahle's operation, as he recounts in his recent interview on the lawsuits that nearly bankrupted it.
First-order effects
- Litigators gain a judicially endorsed shortcut: Wayback captures can now be offered as evidence of what a website actually said at a given time, as they were against KlearGear's non-disparagement clause.
Second-order effects
- Parties with something to hide get an obvious countermove — the Archive's robot.txt policy wipes a site's entire history when crawling is blocked and it does not contest takedown requests, so erasing archived pages becomes a litigation-adjacent strategy.
Third-order effects
- Web archives are hardening into de facto legal infrastructure — trusted by courts as the record of the ephemeral web — which raises the stakes of the Archive's own copyright liabilities: if lending-program losses keep draining the nonprofit, the evidentiary system loses its custodian.
The trend: Courts are institutionalizing web archives as the legal record of the internet even as copyright litigation threatens the nonprofit that maintains them.