Setting out the evidence of an infringement on the Internet is not trivial, particularly regarding a lawsuit and despite the rule of evidence, a specific modus operandi established in that respect needs to be adhered to. As a matter of fact, in this respect, in 2010, a judgment of the Court of Appeal of Paris1 (Cour d’Appel de Paris) points out that a mere screenshot by the plaintiff has no probative value and is not sufficient to prove the infringement.
Archive.org, a website administered by Internet Archive, a non-profit organisation, prides itself for having saved 450 billion of web pages with its wayback engine. Its system provides a snapshot of the content of a webpage with great reliability. Even though the contents of a URL address may have changed, the system of archive.org avoids this risk of modification over time and makes it possible to access a web page as it appeared in the past, up to several years before.
At national level, judges have for long been reluctant to recognise such evidence. France, United States, and also Germany have seen their respective courts refusing such means of evidence because of the absence of legal authority of the issuing body of the archives as well as the lack of reliability of the dates obtained. Contrarily, supranational legal bodies (the WIPO Arbitration Center, European Patent Office) have often been more flexible in this regard.
Firstly, the Court of Appeal of Paris (Cour d’Appel de Paris), on 2 July 2010, did not recognise any probative value to the internet finding of the case in question, effected by means of archive.org, on the basis that “the finding has been effected from an archive website exploited by a third party to the procedure, who is a private person without legal authority, which operating conditions are unknown”, before adding that “this search engine has not been created for legal use” and that “the absence of any interference on the way to giving access to the pages under investigation was therefore not guaranteed”. In truth, this decision is case specific since, in this case, the bailiff, here the third party, had wrongly identified the date on which the archiving had been carried out, and the parties then had to use the URL address of the website on which the said date appeared.
Thereafter, some judgments have wrongly considered this specific case as a rule, the case law then considering the findings effected through the “archive.org” website as being deprived of probative value.
However, the case law of the European Patent Office in this matter has undergone a recent change. On 21 May 2014, the EPO’s Boards of appeal (T 0286/10) gave a ruling2 relating to taking into account the archives of the wayback engine in the case of an opposition to a patent. The Boards of appeal found no reason to consider the dates submitted by the Internet archives as being inaccurate, the burden of which lies on the defendant to prove “the new elements capable of discarding the suspicion and bringing contrary evidence destroying the presumption”. Furthermore, they specify that although the archives database is incomplete, it, with regards to its popularity and reputation, “demonstrates sufficient security to benefit from a presumption of a reliable and trustworthy source of information”, the burden of evidence to the contrary being on the adverse party.
This decision of the EPO therefore goes more in the upstream with regards to the acceptation of evidence submitted by a system of archives and in the legitimacy granted to the “archive.org” website. Similarly, the World Intellectual Property Office (WIPO) Arbitration and Mediation Center recognises the validity of evidence issued from the “archive.org” website.
However, the road towards the evolution of national considerations, and in particular French ones, seems long as long as the issuing body of screenshots is considered as illegitimate by the national judges.
Nevertheless, an evolution can be observed in French cases. Firstly, in a judgment of 19 March 2014, the Court of Appeal of Paris (Cour d’appel de Paris), based its decision on the comparison of websites provided by the “archive.org” website.
Furthermore, the Court of Appeal of Lyon (Cour d’appel de Lyon), on 28 May 2014, dated the beginning of the use of a domain name by taking into account screenshots from the “archive.org” website.
Finally, the TGI (Tribunal de Grande Instance) of Paris, admitted on 21 October 2015, the probative value of the “archive.org” website.
However, a bailiff’s findings seems necessary in order to point out useful pages. Indeed, case law considers that a mere screenshot is not enough as form of evidence in the absence of a bailiff’s findings. It will therefore be necessary to hire a bailiff with the relevant territorial jurisdiction and specialised in matters of “Internet findings”, in order to set out the findings in accordance with the Rule of Law. The probative value of the bailiff’s findings will depend on the compliance with a specific modus operandi, as well as the presence of specific technical statements, set out in case law and the Afnor NF Z67-147 norm, which, however, only amount to good practice guidelines3. It will concern, in particular, the description of the equipment used in order to reach the findings, the absence of proxy use and the deletion of cache memory. In the absence of such statements there will be a doubt as to the concordance between the page shown and the online one with regards to the findings. For them to be indisputable, the bailiff should also mention his IP address. It should also be noted that the evidence put forward with regards to the findings should have been obtained in good faith4.
These recent decisions therefore grant a certain probative value to the screenshots of the website “archive.org”. France therefore follows the decisions of the European and international bodies on this matter.
1 CA of Paris 2-7-2010 RG n°2009/12757
2 OEB, decision of the Technical Board of Appeal on 21 May 2014, Pointsec Mobile Technologies AB / Bouygues Telecom.
3 Court of Appeal of Paris, 27 February 2013
4 Court of Appeal of Paris, 7 October 2015: validity of screenshots if probative extrinsic elements supporting submitted elements, such as a bailiff’s findings, are provided. However, “the evidence put forward with regards to a bailiff’s findings should have been obtained in good faith”.