The WayBack Machine takes its name from a fictional time travel machine in the cartoon The Rocky and Bullwinkle Show.
The “WayBack Machine” is a website maintained by a not-for-profit organisation known as the Internet Archive that allows users to access a digital library of captures of web-pages at different dates.
In the recent decision of Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2)  FCA 1552, Dyno Nobel sought to rely on archived web-pages obtained from the WayBack Machine as part of its evidence. Orica resisted on the basis that they are hearsay documents that do not qualify for any exception in the Evidence Act 1995 (Cth) (the Evidence Act).
Based on previous decisions in relation to the WayBack Machine, it seemed as though Dyno would have a difficult time getting the evidence admitted. Web-pages from the WayBack Machine have already been described as “certainly hearsay” by Justice Perram in Voxson Pty Ltd v Telstra Corporation Limited (No 10)  FCA 376. In that decision, Justice Perram quipped that “all roads lead to Rome” and found that the web pages could not be brought within any of the circumstances that allow the admission of hearsay evidence under the Evidence Act. In this most recent decision, Justice Burley also quickly concluded that the web-pages were hearsay but was of the view that exceptional circumstances existed that allowed his Honour to waive the rules of evidence in accordance with section 190 of the Evidence Act and admit the evidence for the limited purpose of proving the availability of the website and the contents of particular web-pages.
Factors that Justice Burley took into account included that the website in question, “i konsystem.com”, was operated on behalf of Orica, that Orica had not discovered the web pages and had asserted that it was unable to find records of the website at the relevant date(s) in response to two Notices to Admit served by Dyno. Justice Burley appears to have been of the view that the inadequacy of Orica’s records shouldn’t give it a forensic advantage. Justice Burley also took into account that Orica had not contested the accuracy of the material, and that contemporaneous material was consistent with the web pages being accurate representations.
Back to the Future
On this basis, there would now seem to be some prospect of getting print-outs of web pages obtained via the WayBack Machine into evidence where:
(a) the web pages belong to or are otherwise controlled by a party to the proceedings;
and (b) discovery has been sought from that other party and not yielded the content of the web pages.
Interestingly, the Australian Patent Office routinely relies on web pages obtained from the WayBack Machine in examination reports as prior art because it is not bound by the rules of evidence. This case also suggests that in such circumstances, unless the web pages in question are the patent applicant’s own, the patent applicant may have a reasonable chance of getting any decision based on web pages obtained from the WayBack Machine overturned if appealed to the Federal Court.
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Co-Author: Nick Mountford - Patent Attorney