Business Law 11th Edition by Kenneth Clarkson,Roger LeRoy Miller,Gaylord Jentz,Frank Cross

تمرين 20

Novak v. Tucows, Inc.
United States District Court, Eastern District of New York, 2007. __ F.Supp.2d __.
• Background and Facts In 1997, Robert Novak registered the domain name petswarehouse.com and began selling pet supplies and livestock online. Within two years, the site had become one of the most popular sites for pet supplies in the United States. Novak obtained a trademark for the petswarehouse.com name and transferred its registration to Nitin Networks, Inc., which was owned by Tucows, Inc., a Canadian firm. In an unrelated matter, John Benn obtained a judgment against Novak in an Alabama state court. Tucows transferred the name to the court on its order on May 1, 2003. After a state intermediate appellate court reversed the judgment, the name was returned to Novak on October 1, 2004. Novak filed a suit in a federal district court against Tucows and Nitin, arguing that the transfer of the name out of his control for seventeen months destroyed his pet-supply business. Novak alleged several violations of federal and state law, including trademark infringement and conversion. Tucows responded with, among other things, a motion to strike some of Novak's exhibits.
JOSEPH F. BIANCO , District Judge.
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Defendants contend that plaintiff's Exhibits B, J, K, O-R, U and V, which are printouts of Internet pages, constitute inadmissible hearsay and do not fall within any acknowledged exception to the hearsay rule.* * * [D]efendants [also] objected to Plaintiff's Exhibit 1, as well as to Plaintiff's Exhibits N-R. Plaintiff's Exhibit 1 is a printout from "RegisterSite.com," Nitin's Web site, as it purportedly appeared in 2003. According to plaintiff, he obtained the printout through a Web site called the Internet Archive, which provides access to a digital library of Internet sites. The Internet Archive operates a service called the "Wayback Machine," which purports to allow a user to obtain an archived Web page as it appeared at a particular moment in time. The other contested exhibits include: Exhibit B, an online summary of plaintiff's past and pending lawsuits, obtained via the Wayback Machine; Exhibit J, printouts of comments on a Web message board by [Evgeniy] Pirogov [a Tucows employee]; Exhibit K, a news article from the Poughkeepsie Journal Web site featuring [Nitin] Agarwal [the chief executive officer and founder of Nitin]; Exhibit N, Novak's declaration regarding the authenticity of pages printed from the Wayback Machine; Exhibit O, pages printed from the Internet Archive Web site; Exhibit P, pages printed from the Wayback Machine Web site; Exhibits Q, R and U, all of which constitute pages printed from RegisterSite.com via the Wayback Machine; and Exhibit V, a news article from "The Register," a British Web site, regarding Tucows. Where postings from Internet Web sites are not statements made by declarants testifying at trial and are offered to prove the truth of the matter asserted, such postings generally constitute hearsay under [the Federal Rules of Evidence]. [Emphasis added.]
Furthermore, in this case, such documents have not been properly authenticated pursuant to [the Federal Rules of Evidence]. a While plaintiff's declaration purports to cure his inability to authenticate the documents printed from the Internet, he in fact lacks the personal knowledge required to set forth with any certainty that the documents obtained via third-party Web sites are, in fact, what he proclaims them to be. This problem is even more acute in the case of documents procured through the Wayback Machine. Plaintiff states that the Web pages archived within the Wayback Machine are based upon "data from third parties who compile the data by using software programs known as crawlers," who then "donate" such data to the Internet Archive, which "preserves and provides access to it." Based upon Novak's assertions, it is clear that the information posted on the Wayback Machine is only as valid as the third-party donating the page decides to make it-the authorized owners and managers of the archived Web sites play no role in ensuring that the material posted in the Wayback Machine accurately represents what was posted on their official Web sites at the relevant time. As Novak proffers neither testimony nor sworn statements attesting to the authenticity of the contested Web page exhibits by any employee of the companies hosting the sites from which plaintiff printed the pages, such exhibits cannot be authenticated as required under the [Federal] Rules of Evidence. Therefore, in the absence of any authentication of plaintiff's Internet printouts, combined with the lack of any assertion that such printouts fall under a viable exception to the hearsay rule, defendants' motion to strike Exhibits B, J, K, N-R, U and V is granted.
a. In this context, authentication requires the introduction of sufficient evidence to show that these Web pages are what Novak claims they are.
• Decision and Remedy The court granted Tucows's motion to strike Novak's exhibits. Tucows also filed a motion to dismiss Novak's suit altogether based on a clause in the parties' domain name transfer agreement. The clause mandated the litigation of all related disputes in Ontario, Canada, according to Canadian law. The court determined that the clause was valid and reasonable, and granted Tucows's motion to dismiss the suit.
• The Ethical Dimension Hearsay is literally what a witness says he or she heard another person say. What makes the admissibility of such evidence potentially unethical
• The E-Commerce Dimension In this case, the plaintiff offered as evidence the printouts of Web pages that he claimed once appeared on others' Web sites. What makes such evidence questionable until proved accurate