Your Website May be Used Against You in Florida Federal Courts

March 14, 2012

In today's world, it is almost impossible to imagine a life without the Internet. Many people are becoming increasing dependent on Facebook, Google or even email - with younger generations who would find themselves completely lost without them. Unfortunately, as with every technological advancement there is always someone who is willing to exploit it; which is only illustrated by an Internet rife with illegal music and movie downloads, not to mention unauthorized uses of trademarks.

Consequently, the owners of intellectual property - such as copyrights and trademarks - must protect and enforce their ownership rights on the Internet, or run the risk of losing them. Thus, the infringing uses on the world-wide-web of intellectual property often leads to litigation throughout the nation, including Florida.

However, once intellectual property litigation begins, the issue arises of how intellectual property owners are going to prove infringement when often the only proof of infringement is an actual Internet web-page. In the past, being able to use printouts of web-pages in court proved to be exceedingly difficult, with one U.S. District Court judge even stating that the Internet is "one large catalyst for rumor, innuendo, and misinformation" and that information found on the Internet is presumed to be "inherently untrustworthy" and unable to be verified for authenticity.

Fortunately, courts' opinions have evolved alongside technology, and now many federal courts will allow printouts of web-pages to be used as evidence as long as they can be verified and authenticated.

Using Web-Pages in Florida Federal Court

The Federal Rules of Evidence requires authentication of evidence "as a condition precedent to admissibility." When it comes to non-government web-pages federal courts, including Florida, have determined that they are not self-authenticating. In St. Luke's Cataract and Laser Institute v. Sanderson, a Florida federal court stated, "to authenticate printouts from a website, the party proffering the evidence must produce 'some statement or affidavit from someone with knowledge [of the website] ... for example [a] web master or someone else with personal knowledge would be sufficient.'"

Also, although not specifically enumerated by federal courts in Florida, other courts have set forth three questions when determining if a web-page has established adequate foundation.

- Is the printout an accurate reflection of the computer image on the web-page on the specified date
- Is the website where the posting appears controlled or owned by a particular entity or person
- Is that particular entity or person the author of the website posting

Moreover, when a federal court considers whether a web-page printout is sufficiently trustworthy to be used as evidence, it will generally look at the totality of the circumstances. The court can look at a number of factors, including some of the following:

- How long has the information/posting been on the web-page
- Whether the federal court can verify the information/posting is still posted on the web-page
- Whether the author of the web-page has republished the same content in additional places
- Whether others have republished the same content and cited the web-page as its source

Ultimately, if authorship or responsibility for the web-page cannot be adequately shown, a federal court will normally exclude the evidence so that it cannot be considered.

Web-Pages as Hearsay

It is important to note that even if a web-page can be authenticated and proper foundation laid, it still may excluded by the court if they determine the web-page is hearsay - simply put, if the web-page is being offered for the truth of what it asserts.

Generally, if the web-page or posting is sufficiently authenticated as being from the person it is now being offered against, the page or posting can be considered an admission by that party, and thus not hearsay. However, if the web-page or posting is authored by a third party and offered for its truth, it must fall under a federal hearsay exception in order to be used by the court - such as the business records exception.

Although nothing in this article should be taken as legal advice, it does illustrate the difficulties courts face today as they attempt to keep up with technology. Federal evidence rules can be complex and confusing, especially when dealing with the web-pages and intellectual property. If you believe your intellectual property has been infringed upon, or conversely are being accused of infringing someone else's intellectual property, it is important to contact an experienced intellectual property attorney in your area to be advised of your rights and options.

Article provided by Grumer & Macaluso PA
Visit us at www.grumerlaw.com