The Web as a Data Source: What We Can Learn From In Re Ex Parte Application of Levi Strauss & Co.

Interesting use of the Wayback Machine to gather evidence about IP infringement…:

[…] New Yorker told the expert that only one of its styles of jeans bore an infringing stitch pattern and that it sold a grand total of 3,507 pairs of that style. Perhaps proving that its number was a lowball estimate, although the Belgian “expert has attempted to obtain information from New Yorker regarding its sales since 2006,â€� New Yorker didn’t turn over any supporting evidence.

Levi wasn’t having it; it suspected that the true number of infringing pairs was in the millions instead, but had no evidence to prove that assertion.

Running out of options, Levi turned to the Wayback Machine, operated by the Internet Archive, to view past versions of New Yorker’s website. When it got there, though—surprise, surprise—it found only an error message indicating “This URL has been excluded from the Wayback Machine.� It turns out that this isn’t hard to do; the court confirmed that “an individual or other entity can request that a site be excluded from the Wayback Machine.�

Levi didn’t give up, though. It filed an ex parte application seeking to take discovery from the Internet Archive, a non-party in the foreign judicial proceeding, for use in the original case. Specifically, it requested:

  1. information about whether New Yorker asked to have its website excluded from Wayback Machine collections,
  2. information about whether New Yorker asked to have the history from some of its other sites excluded from the Wayback Machine, and
  3. “copies of any such website history that still exists even though it has been hidden from public view.�

In this opinion, the court granted Levi’s motion, ordering the Internet Archive to answer all three inquiries. […]

Read the original article here

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