Newsletter
The Intellectual Property and Commercial Court recently recognized the search results of the "Wayback Machine" as a basis for judgment
In civil infringement litigation concerning intellectual property rights, it is common for the disputed infringement facts to exist in cyberspace. For example, in copyright infringement cases, it is common to see unauthorized placement of copyright-protected graphic works on public webpages. However, public webpage content can be updated and modified at any time by web administrators, and the current webpage content may not correspond to that at the time of the infringement due to subsequent updates. Although tools such as the "Wayback Machine" can be used to retrospectively view historical webpages and may be used by the concerned parties to "reconstruct the scene" to prove relevant facts, questions remain regarding the credibility of these privately developed search engines and whether the courts will accept the relevant assertions made by the parties. Recently, the 2023 Min Zhu Shang Yi Zi No. 16 judgment rendered by the Intellectual Property and Commercial Court explicitly affirmed that the search results obtained using the Wayback Machine can be used as a basis for the court to determine facts. The rationale is summarized as follows:
1. While the Wayback Machine is an internet historical data query system developed by a non-profit private organization, which may be affected by updates in internet information, its purpose, however, is to preserve internet historical data, so the internet data it presents is still sufficient to show the main body of data of historical webpages. Regarding side ads or Flash information that do not affect the main body of data, although their content may change, it is still difficult to assert that the historical webpages they capture are all false.
2. Moreover, querying specific matters through privately developed software and using the obtained data as a basis for judgment is not unprecedented. For example, the Google search engine is also developed by a private institution, but it is not uncommon for data obtained through Google searches to be used as a basis for judicial decisions. Therefore, it cannot be concluded that all data obtained from such software searches are unacceptable. If the search content and process adhere to established rules of experience and science, they can still be considered valid.