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 â€œexpert has attempted to obtain information from New Yorker regarding its sales since 2006,â€� New Yorker didnâ€™t turn over any supporting evidence.
Levi wasnâ€™t having it; it suspected that the true number of infringing pairs was in theÂ millionsÂ instead, but had no evidence to prove that assertion.
Running out of options, Levi turned to theÂ Wayback Machine, operated by the Internet Archive, to view past versions of New Yorkerâ€™s website. When it got there, thoughâ€”surprise, surpriseâ€”it found only an error message indicating â€œThis URL has been excluded from the Wayback Machine.â€� It turns out that this isnâ€™t hard to do; the court confirmed that â€œan individual or other entity can request that a site be excluded from the Wayback Machine.â€�
Levi didnâ€™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:
- information about whether New Yorker asked to have its website excluded from Wayback Machine collections,
- information about whether New Yorker asked to have the history from some of its other sites excluded from the Wayback Machine, and
- â€œcopies of any such website history that still exists even though it has been hidden from public view.â€�
In this opinion, the court granted Leviâ€™s motion, ordering the Internet Archive to answer all three inquiries. […]