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Использование материалов интернет-архива Wayback Machine в качестве доказательства в арбитражном процессе
Highly dynamic nature of information processes occurring in Internet and inherent ease of changing and deleting information on the web-sites creates substantial difficulties in proving the existence of certain content existing once on the Internet. Conservatism demonstrated by the courts in matters relating to admissibility of evidences obtained from Internet further complicates the position of aggrieved party in litigation, favoring unconscionable conduct of the other party. Nevertheless, some Internet resources may demonstrate how certain web-page looked like at a certain period of time even if it was subsequently deleted or changed. Internet archive Wayback Machine is the most prominent example of such resource. This article considers some issues relating to the use of information obtained from Wayback Machine as an evidence in judicial process. Specifically, whether such information may be considered as reliable. There are illustrations from foreign and Russian case law, demonstrating the approaches of treating the information from Wayback Machine as an evidence. The author concludes that there are no persuasive arguments to consider information from Wayback Machine to be non reliable. Such information is under control of the neutral third party which is a recognized expert in the sphere of digital archiving. The process of archiving is automatized and based on technologies widely and effectively used by search engines. Although like any information in Internet it may be subject to hacker attacks and other manipulations, the presence of such exceptional circumstances are to be proved by the other party reflecting the adversary nature of the judicial process (Article 65 of Russian APC). Thus, Wayback Machine may open a new horizons in litigation relating to IP rights infringement, defamation and other disputes connected with activities conducted in the Internet