"Judicial Notice and the Internet" Washburn Law Journal Spring 2013

Judicial Notice and the Internet: The Legal Reasoning
and Technical Basis for Taking Judicial Notice of the
Fact that Internet Pages Display from the Top-Left-
Hand Corner Out

Jonathan Bick*

I. INTRODUCTION
The American judicial system requires that each fact in a case be proven
through formal presentation. Most Internet transactions involve acts
completed by people in the presence of devices rather than in the presence of
other people. This lack of other people’s presence promotes confusion during
litigation around a single fundamental fact—what a participant to an Internet
transaction accessed.
Legislatures throughout the United States have reduced the judicial
system burden by allowing every level of court to recognize facts that
constitute common knowledge without requiring proof from the parties—
known as “judicial notice.” As technology has evolved, so has the scope of
judicial notice. In order to improve court efficiency and the likelihood of a
meritorious decision, judicial notice should include the fact that what a
participant to an Internet transaction accessed is not subject to reasonable
dispute.
Internet use and related litigation are growing.1 By taking judicial
notice2 of Internet content,3 courts promote judicial convenience and

* Jonathan Bick is Of Counsel at Brach Eichler, LLC in Roseland, New Jersey. He is also an Adjunct
Professor at Rutgers School of Law and the author of 101 Things You Need to Know About Internet Law
(Random House 2000).
1. See Sarah E. Roland, The Uniform Electronic Signatures in Global and National Commerce Act:
Removing Barriers to E-Commerce or Just Replacing Them with Privacy and Security Issues?, 35 SUFFOLK
U. L. REV. 625, 625 n.2 (2001). Internet use as a commercial channel and overall growth of Internet use are
two significant measures. Id. “Online spending during the 1999 holiday season was more than five billion
dollars.” Id. A “bold 1999 prediction that U.S. consumer e-commerce would reach $108 billion by 2003
wasn’t so far off.” Timothy J. Mullaney, The E-Biz Surprise, BLOOMBERG BUSINESSWEEK (May 11, 2003),
http://www.businessweek.com/stories/2003-05-11/the-e-biz-surprise. The Pew Research Center’s Internet &
American Life Project conducted Internet use surveys. The results of the surveys from 2000 and 2012
demonstrate just how much Internet use has increased. Below is the May 2000 data:
47%—overall internet population of adults
78%—internet population of those in households earning more than $75,000
28%—internet population of those in households earning less than $30,000
61%—internet population of those ages 18–29
14%—internet population of those ages 65 and older.
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economy.4 Courts have an opportunity to promote efficiency by taking
judicial notice of certain Internet-related facts. This Article supplies the legal
and technical justifications for such judicial notice.
In particular, this Article will provide the technical reasons for taking
judicial notice of the fact that the Internet will always display the upper-lefthand
corner of each page that is requested by a user. Courts taking such
notice will be able to dispense with the time and effort necessary to
demonstrate that an Internet site user viewed certain Internet content.
This Article is composed of four parts. Part II describes the doctrine of
judicial notice and its significance to litigation involving the Internet. Part III
establishes that a court may take notice of Internet programming protocol
because a court can establish that such protocol information is correct without
resorting to evidentiary proof. Part III also provides the technical reason for
the Internet to display websites from the upper-left-hand corner out. Next,
Part IV describes the potential significance of taking judicial notice of upperleft-
hand corner display, especially with regards to a “terms of use”
agreement icon. Finally, Part V identifies additional Internet operational facts
that may merit judicial notice.
In contrast, below is the January 20–February 19, 2012 data:
80%—overall internet population of adults
98%—internet population of those in households earning more than $75,000
65%—internet population of those in households earning less than $30,000
94%—internet population of those ages 18–29 online
50%—internet population of those ages 65 and older).
Presentation Source File, Pew Research Center’s Internet & American Life Project, By the Numbers:
Technology’s Place in Our Lives (Feb. 23, 2012), http://www.pewinternet.org/~/media/Files/Presentations/
2012/Feb/2012%20-%202%2023%2012%20-%20Wisdom%202%200%20-%20figures%20about%20tech%
20PDF.pdf.
Internet-related litigation has nearly doubled in the past four years by one measure. Using the
LexisNexis legal research database, only 735 federal cases from January 1, 2000, to January 1, 2001,
contained “Internet” in their head note section. Comparatively, 1,402 federal cases from January 1, 2004, to
January 1, 2005, contained “Internet” in their head note section.
2. The term “judicial notice” is defined as “[t]he cognizance of certain facts which a judge under rules
of legal procedure or otherwise may properly take or act upon without proof because they are already known
to him or because of that knowledge which a judge has, or is assumed to have by virtue of his office.”
BALLENTINE’S LAW DICTIONARY 685 (3d ed. 1969).
3. Courts have regularly taken judicial notice of Internet information. As with traditional
publications, courts are most willing to take judicial notice of information found on government websites. In
United States v. Bervaldi, the court took judicial notice of the time of sunrise, found on the website of the
U.S. Naval Observatory. 226 F.3d 1256, 1266 n.9 (11th Cir. 2000). In Levan v. Capital Cities/ABC, Inc., the
court took notice of the prime interest rate which it found on the Federal Reserve Board website. 190 F.3d
1230, 1235 n.12 (11th Cir. 1999). Judicial notice of mileage was taken using the MapQuest site in In re
Extradition of Gonzalez. 52 F. Supp. 2d 725, 731 n.12 (W.D. La. 1999). Judicial notice was taken of
information regarding a bank’s ownership from the bank’s website in Laborers’ Pension Fund v. Blackmore
Sewer Construction, Inc., 298 F.3d 600, 607 (7th Cir. 2002).
4. A court may promote convenience and economy by taking judicial notice of a fact and dispensing
with formal proofs, which is the usual method of establishing facts at trial. The obvious benefit of such
action is associated with reducing both parties’ costs and reducing the need for the court’s time if the court
establishes a fact in an adversarial proceeding and dispenses with formal proof when a matter is not really
disputable because there is no real issue of fact.
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II. THE DOCTRINE OF JUDICIAL NOTICE
Judicial notice is the process by which the finder of fact at a trial accepts
certain facts as true without the necessity of a formal proof proceeding. It is a
substitute for evidence. Judicial notice is rooted in the knowledge that certain
factual findings are not subject to sensible debate and thus may be properly
resolved by the presentation of appropriate evidence to the finder of fact at
trial. As more people use the Internet, the features of the Internet will become
increasingly familiar to those involved in the judicial process, and, as a result,
such features will be generally known and thereby subject to judicial notice.
Section A of this Part describes the process by which a court takes
judicial notice. Section B explains the practical implications of taking judicial
notice. Finally, this Part suggests that the doctrine of judicial notice can and
should be applied to Internet programming protocols.
A. How Judicial Notice Works
When a court takes judicial notice of a fact, it dispenses with formal
proof, which is the usual method of establishing facts at trial. A court’s
ability to take judicial notice of a fact is limited; however, judicial notice may
cover the issues of who did what, where, when, how, and with what motive or
intent, and will typically relate to the parties, their activities, their properties,
and their businesses.5
The Federal Rules of Evidence (“FRE”) recognize judicial notice based
on the concept of verifiable certainty. FRE 201 governs judicial notice in
federal practice. In particular, FRE 201(b) reads: “The court may judicially
notice a fact that is not subject to reasonable dispute because it: (1) is
generally known within the trial court’s territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.”6
Judicial notice can be taken of either a legislative fact or an adjudicative
fact.7 Adjudicative facts are facts related to a particular case. These facts
concern the issues of who did what, where, when, and how, and they are
ordinarily resolved by the finder of fact at trial. Adjudicative facts normally
are related to the parties; their transactions; and their assets, properties, and
5. See United States v. Gould, 536 F.2d 216, 219 (8th Cir. 1976) (“It is apparent that courts may take
judicial notice of any fact which is ‘capable of such instant and unquestionable demonstration, if desired, that
no party would think of imposing a falsity on the tribunal in the face of an intelligent adversary.’ ”) (internal
citations omitted).
6. See Cosom v. Marcotte, 760 A.2d 886, 893 (Pa. Super. Ct. 2000) (concerning judicial notice
prerequisites, including the requirements that: “(1) the matter must be a matter of common and general
knowledge; (2) it must be well and authoritatively settled; and (3) it must be known within the limits of the
jurisdiction of the court”) (internal citation omitted).
7. 55 HARV. L. REV. 364, 404–07 (1942). This dichotomy was noted by Professor Kenneth Davis in
his article An Approach to Problems in Evidence in the Administrative Process.
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228 Washburn Law Journal [Vol. 52
businesses.8 Legislative facts, however, are related to legal reasoning and the
lawmaking process. Internet programming protocol, such as having the
Internet always display the upper-left-hand corner of each page requested by
an Internet user, is an adjudicative fact. Regarding adjudicative facts, FRE
201 provides that courts may only take judicial notice of adjudicative facts
that are “not subject to reasonable dispute.”9
A court may take judicial notice in both civil and criminal cases. In civil
cases, a court will instruct the jury to accept as an irrefutable fact anything
that the judge has judicially noticed. In criminal cases, the court can only
instruct the jury that it may accept as fact findings of judicially-noticed
facts.10 Because Internet transactions have resulted in both civil and criminal
cases, taking judicial notice of Internet programming protocol may prove
useful to both courts and litigants.
Just as jurors have the right to rely on their common knowledge, a court
has the right to take judicial notice of subjects of common knowledge.11 As
the use of the Internet expands,12 so presumably has the knowledge of
Internet programming protocol facts.
B. The Purpose of Judicial Notice
The purpose of taking judicial notice is to allow for the conservation of
resources13: a short-cut designed to reduce the court’s work.14 Because
taking judicial notice is a means of conserving scarce judicial resources, a
court may do so upon its own motion. By doing so, a court may swiftly move
8. See FED. R. EVID. 201 advisory committee’s note (a) (defining adjudicative facts).
9. FED. R. EVID. 201(b).
10. See, e.g., Sullivan v. Louisiana, 508 U.S. 275 (1993). In that case, the Court found that, due to
Sixth Amendment right to trial by jury concerns, a judge may not direct a verdict or a partial directed verdict
by way of judicial notice; thus, judicially-noticed facts are not binding in a criminal trial. Id.
11. See Commonwealth v. Kingsbury, 393 N.E.2d 391, 393 (Mass. 1979).
12. See ACLU v. Reno, 929 F. Supp. 824, 831 (E.D. Pa. 1996) (reporting that fewer than 300
computers were linked to the Internet in 1981 but that the number had grown to over 9 million computers by
1996); see also Lee Rainie, Big Jump in Search Engine Use, PEW INTERNET & AMERICAN LIFE PROJECT
(Nov. 20, 2005), http://www.pewinternet.org/Reports/2005/Big-jump-in-search-engine-use/Data-Memo.aspx.
This on-line article reports:
Pew Internet Project data from June 2004 show that use of search engines on a typical day has
risen from 30% to 41% of the internet-using population, which itself has grown in the past year.
This means that the number of those using search engines on an average day jumped from roughly
38 million in June 2004 to about 59 million in September 2005 – an increase of about 55%.
comScore data, which are derived from a different methodology, show that from September 2004
to September 2005 the average daily use of search engines jumped from 49.3 million users to 60.7
million users – an increase of 23%.
Id.
13. See Brenda C. See, Written in Stone? The Record on Appeal and the Decision-Making Process, 40
GONZ. L. REV. 157, 190 (2005) (stating that “[t]he purpose of the doctrine of judicial notice is to permit a
court to consider as . . . [a] fact without the necessity of formal proof”) (internal citation omitted).
14. See Communist Party of United States v. Peek, 127 P.2d 889, 895 (Cal. 1942) (“The doctrine of
judicial notice was adopted as a judicial shortcut to avoid necessity for the formal introduction of evidence in
certain cases where there is no real need for such evidence.”).
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the trial along by relieving itself of unnecessary burdens.15 Taking judicial
notice is also a means of conserving a litigating party’s resources. Hence, a
court must take judicial notice of a fact when requested to do so by a party
who supplies the obligatory information16 and when the other party has had
an opportunity to oppose the taking of judicial notice.17 In either case, taking
judicial notice of Internet programming protocol, such as the protocol that
forces the Internet to display the upper-left-hand corner of content pages
requested by an Internet user, will enable the conservation of resources.
Courts properly take judicial notice of facts that are not objectionable to
a reasonable person.18 By doing so, courts may dispense with the usual
method of establishing adjudicative facts through the introduction of
evidence. Ordinarily consisting of the testimony of witnesses, establishing
adjudicative facts is both time- and asset-consuming for the courts and the
parties involved in the litigation. The appropriate introduction of a fact via
judicial notice is not as time- and asset-consuming. From a trial attorney’s
perspective, the presentation of live expert testimony is expensive when
compared to the use of judicial notice. Rather than spending thousands of
dollars for live expert testimony, an attorney typically must pay an expert only
a few hundred dollars to prepare an affidavit supporting judicial notice.
Courts have judicially noticed propositions about a wide range of
technical topics. Such propositions need not be matters of common
knowledge, nor must the judge who takes judicial notice of a fact have
personal knowledge of such facts,19 provided that the facts can be verified to a
certainty by reference to competent authoritative sources.20 The fact that
most, if not virtually all, Internet access terminals display Internet sites from
the upper-left-hand corner out is easily perceptible to even the most casual
observer. Taking judicial notice of this fact would relieve the court of hearing
evidence of what an Internet user did or did not receive as a result of the
request.
III. A COURT MAY TAKE NOTICE OF INTERNET PROGRAMMING PROTOCOLS
Internet programming protocol facts, if relevant to a particular matter,
may qualify for judicial notice because such information will facilitate a
15. See See, supra note 13, at 191 (“A trial court employs judicial notice of adjudicative facts to move
the trial along.”).
16. See FED. R. EVID. 201(c)(2) (stating that judicial notice is mandatory if a court is so requested and
supplied with necessary information); see also Haye v United States, 461 F. Supp. 1168, 1174 (C.D. Cal.
1978).
17. See United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003). In this case, the district court erred
by not allowing the claimant to have opportunity to respond to a request for judicial notice. Id.
18. See FED. R. EVID. 201(b).
19. See 29 AM JUR 2D Evidence § 26 (2013) (“[J]udicial notice is not limited by the actual knowledge
of the individual judge . . . .”).
20. See id.
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judicially-empowered fact finder.21 The assumption underlying FRE 201’s
judicial notice conventions is that certain information does not need to be
proven by the introduction of evidence at trial. Thus, Rule 201 allows a court
to establish that the information is relevant and valid without resorting to
evidentiary proof22 and, in doing so, allows justice to be achieved in a more
economical fashion.23 Internet programming protocols are the type of
evidence of which a court could take judicial notice.
Section A of this Part establishes why Internet programming protocols
are necessary and why following or failing to follow these protocols
determines without reasonable dispute the user’s ability to access the Internet.
Section B provides that Internet programming protocols can be judicially
noticed because they are either generally known or readily verifiable. Section
C explains the technical basis for verifying that Internet pages display from
the upper-left-hand corner out.
A. Reasoning for Internet Programming Protocols
When one looks at a traditional page of text, the flow of text in a
paragraph begins on the upper-left-hand side of a page and moves toward the
right. Historically, this innovation has been attributed to right-handed
cuneiform scribes who observed that writing on clay tablets was less smudged
when one moved from left to right.24 When text wraps, the new line begins
below the previous one at the left side of the page. For English readers, it is
so natural that one does not even notice these conventions. However,
numerous studies have found that aligning English text to the right results in
decreased readability and comprehension.25
The same cannot be said of Internet content displayed on computer
screens. Like traditional text, the flow of text in a paragraph begins in the
upper-left hand and moves toward the right. Unlike traditional text, however,
21. See 29 AM JUR 2D, Evidence supra note 19, § 25 (stating that, “[i]n order to be admissible,
evidence must be relevant to the issues in the case”).
22. Cupey Bajo Nursing Home, Inc. v. United States, 36 Fed. Cl. 122, 135 n.22 (1996) (stating that
“[b]y taking judicial notice of a fact, the court may inform itself of a particular fact without resort to
evidentiary proof”).
23. See generally Edward J. Imwinkelried, Shorten Trial Presentations, Reduce Litigation Costs;
Seasoned Attorneys Frequently Consider Dispensing with Live Testimony and Instead Take the Judicial
Notice Route, N.J. L.J. (Jan. 14, 2002). This article states that seasoned attorneys frequently consider
dispensing with live testimony and instead take the judicial notice route. Id.
24. ALVIN SYLVESTER ZERBE, THE ANTIQUITY OF HEBREW WRITING AND LITERATURE 149 (1911); see
also JEAN-JACQUES GLASSNER, THE INVENTION OF CUNEIFORM: WRITING IN SUMER 119 (Zainab Bahrani &
Marc Van De Mieroop eds., 2003).
“Originally pictographs were arranged vertically, from right to left. Sometime in the latter third
millennium the writing came to be arranged horizontally from left to right. At the same time, all the symbols
were rotated counterclockwise ninety degrees. (These changes probably reflect conveniences in writing for
right-handed scribes.)” J. Michael Stitt, Cuneiform, UNLV DEP’T OF ENGLISH, http://faculty.unlv.edu/jmstitt/
Eng480/Writing/Cuneiform.html (last visited Feb. 16, 2013).
25. Carol Bergfeld Mills & Linda J. Weldon, Reading Text from Computer Screens, 19 ACM
Computing Surveys 329 (1987) Section 3.5 Right Justification.
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the text wraps beyond the end of the computer display, and the new line,
which begins below the previous one at the left side of the page, may not
make sense because the computer has failed to display all of the text from the
end of the line above it.26
The fact that Internet programming protocols force Internet sites to
display content from the upper-left-hand corner out is a significant problem
for much of the world. Both Japanese and Chinese books and magazines lay
out printed text vertically. The text begins at the top-right corner of the page
and flows downward, wrapping the next line to the top of the page and to the
left of the previous line. Newspaper headlines, for example, run down the
right side of the page. Despite the traditional layout of printed material, both
Japanese and Chinese Internet sites must be designed to display content from
the upper-left-hand corner out because Internet programming protocols cannot
handle displaying content from the upper-right-hand corner out.27
These protocols that force Internet sites to display content from the
upper-left-hand corner, as well as other Internet programming protocols,
allow the Internet to exist. Unless all Internet users agree to certain
programming protocols, the Internet would cease to function. Because “[t]he
Internet is an international network of interconnected computers[,]”28
communication on the Internet requires adherence to common technical
protocols. Thus, these common technical protocols are a set of agreed-upon
“rules” of communication between and among computers networked into the
Internet.
At the Internet’s foundation is the logical layer, which consists of two
standard sets of rules: namely, the Transmission Control Protocol (“TCP”)
and the Internet Protocol (“IP”)29—commonly known together as TCP/IP.
Together, these two sets of rules define the nature of Internet
communications.
TCP repackages each Internet communication into messages suitable for
digital communication, assigns a number to each message it creates, and
prepares a check sum so that the receiving computer can check the integrity of
the communication. Additionally, it makes available detailed information
necessary for the reassembly of the message into the proper sequence by the
receiving computer and orders the resending of any lost or damaged
messages. In short, all Internet communications rely on TCP to communicate
26. See U.S. Patent No. 6694485 (filed Feb. 17, 2004); see also U.S. Patent No. 5987482 (filed Nov.
16, 1999); U.S. Patent No. 4333097 (filed June 1, 1982).
27. See generally Heiko Sacher, Interactions in Chinese: Designing Interfaces for Asian Languages,
SACHER DESIGN (Sept.–Oct. 1998), http://www.sacherdesign.com/papers/Apple_SpeechInput.pdf.
28. Reno v. ACLU, 521 U.S. 844, 849 (1997).
29. See Alexander R. Galloway, 597 ANNALS AM. ACAD. POL. & SOC. SCI. 19, 21 (2005). “The
protocols that govern much of the Internet are contained in what are called RFC (Request for Comments)
documents. The expression derives from a memorandum titled ‘Host Software’ sent by Steve Crocker on
April 7, 1969, which is known today as RFC 1.” Id.
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a message. Thus, the Internet programming protocols supply the output for
each message with the same input.
The IP adds computer instructions to each message prepared by the TCP.
These instructions dictate the routing of messages among Internet computers.
Among other computer instructions added to TCP messages by the IP, it
provides the Internet address of the sending computer and the Internet address
of the destination computer.30 Because all Internet communications follow a
set of rules, software programs known as “parsers” use these Internet rules to
convert incoming compressed messages into a fixed format.
Additionally, the Internet is composed of a wide variety of display
devices; thus, the Internet graphic software must be device independent.
Therefore, Internet access devices share baseline specifications. Among other
specifications are those related to graphical display interfaces such as the ones
set forth by The American National Standards Institute,31 which calls for the
use of common defaults.
Failing to follow each and every one of the foregoing protocols results in
a potential Internet user’s inability to access or use the Internet. Conversely,
potential Internet users who execute the foregoing protocols are allowed to
access or use the Internet. Consequently, either following or failing to follow
said protocols will, without reasonable dispute, determine whether the user
can access the Internet.
B. Judicial Notice Can Be Taken of Internet Protocols
Courts have judicially noticed propositions about a wide range of
technological subject matters. Although such propositions in these areas are
hardly matters of common knowledge, the modern scope of judicial notice is
not limited to such matters. The fact that most, if not virtually all, Internet
access terminals display Internet sites from the upper-left-hand corner out is
well-known. This fact is widely recognized in the e-commerce marketplace.
Website providers will promise to those who pay a premium price that they
will get premium placement on the brander’s website, such as being in the
upper-left-hand corner.32
Furthermore, when an Internet site’s “terms of use” agreement appears
in the upper-left-hand corner of an Internet page, FRE 201 may be triggered
to determine whether judicial notice should be taken of the Internet user’s
awareness of the “terms of use” agreement. A court may take notice of
Internet programming protocol because such protocol meets the requirements
30. See generally James B. Speta, A Common Carrier Approach to Internet Interconnection, 54 FED.
COMM. L.J. 225 (2002) (discussing TCP/IP and other aspects of Internet communication).
31. See Galloway, supra note 29, at 23. “ANSI, the American National Standards Institute, is
responsible for aggregating and coordinating the standards creation process in the United States.” Id.
32. See Eric Goldman, Understanding Internet Co-Branding Deals, 16 SANTA CLARA COMPUTER &
HIGH TECH. L.J. 65, 73 (2000).
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for judicial notice of an adjudicative fact. For judicial notice to be embraced
by the court, however, the Internet programming protocol must be either
generally known or readily verifiable.33
First, Internet programming protocol facts are generally known
throughout the United States (and thus within the territorial jurisdiction of any
trial court). Second, Internet programming protocol facts can be readily
verified by resorting to sources whose accuracy cannot reasonably be
questioned. Thus, under FRE 201, there are two different ways that Internet
programming protocol facts may be found to be indisputable adjudicative
facts subject to judicial notice.
Under the first test, Internet programming protocol facts are experienced
first-hand by most people. Millions of people use the Internet every day, and
each of those people have the personal, first-hand experience of seeing that
the Internet will always display the upper-left-hand corner of each page that
they requested. This fact is so well known that it is a waste of judicial
resources to require proof. As to this fact, reasonably knowledgeable people
cannot disagree.34 Although it could be argued that some people would not
know about Internet programming protocol facts, it is not required that said
facts be universally known. Courts may take judicial notice of facts generally
known within its territorial jurisdiction.35
Under the second test, Internet programming protocol facts can be
judicially noticed because they are readily verifiable through sources whose
reliability cannot reasonably be questioned. Judicial notice of these facts is
appropriate even if it is not generally known that the manner in which the
Internet functions is due to Internet programming protocols. In other words,
Internet programming protocol facts—such as the fact that the Internet will
always display from the upper-left-hand corner out—are subject to judicial
notice because they can be easily and reliably verified.36 The next Part of this
Article details reliable sources that may be used to verify that the Internet will
always display Internet pages from the upper-left-hand corner out.
33. See FED. R. EVID. 201(b).
34. See, e.g., United States v. Lewis, 833 F.2d 1380 (9th Cir. 1987). In this case, the lower court erred
in taking judicial notice of effects of surgery on the defendant because the judge relied on his own personal
experience rather than finding that the effects were facts upon which reasonably knowledgeable people
agreed. Id. at 1385–88.
35. See, e.g., Norman v. Housing Auth. of Montgomery, 836 F.2d 1292 (11th Cir. 1988). In this case,
the court properly took judicial notice of the prevailing wage rate for local bookkeepers. Id. at 1304.
36. See, e.g., Terrebonne v. Blackburn, 646 F.2d 997 (5th Cir. 1981). In this case, the court took
proper judicial notice of pardons by a parole board by referring to an authorized governmental report. Id. at
1000 n.4.
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C. The Technical Basis for Verifying that Internet Pages Display From the
Upper-Left-Hand Corner Out
Verifying that the Internet pages display from the upper-left-hand corner
out requires the understanding of three technological concepts. Section 1 of
this Part introduces Hypertext Markup Language (“HTML”), the standard
language for displaying webpages. Section 2 discusses web-based image
displays, including the standard protocols for displaying Internet pages from
the upper left hand corner out. Finally, Section 3 addresses the programming
basis for opening Internet pages from upper-left-hand corner out.
1. Web-Based Image Distribution and Display
One of the major innovative aspects of the Internet is that it offers
standardized interfaces for viewing images and texts through standard
protocols. As previously noted, Internet access and use are enabled by
complying with a set of protocols. Consequently, failure to use said interfaces
will result in a lack of Internet access. Such failure is not subject to
reasonable dispute and, as a result, should be subject to judicial notice.
Most documents on the web are stored and transmitted in HTML.
HTML is a simple language well suited for hypertext, multimedia, and the
display of small and reasonably-simple documents. HTML is based on
standard generalized markup language (“SGML”), an international
organization for standardization (“ISO”) standard system for defining and
using document formats. However, HTML has some limitations on
extensibility, structure, and validation.37
2. Web-Based Image Display
Currently, most web browsers, including Microsoft Internet Explorer,
Mozilla Firefox, Google Chrome, and Apple’s Safari, support Joint Photographic
Experts Group (“JPEG,” 24 bits for color images) or Graphics
Interchange Format (“GIF,” 8 bits) image rendering. These browsers also
support text display mode. Web-based imaging display, like web-based
distribution, relies on the fact that Internet access and use are enabled by
complying with a set of protocols. Failure to use said interfaces will result in
a lack of Internet access. Such failure is not subject to reasonable dispute and,
consequently, should be subject to judicial notice.
Text display mode is the visual display equivalent of printing. In fact,
the most universally accepted programming command for displaying text on a
computer terminal is PRINT followed by two sets of quotation marks (i.e.,
37. Jon Bosak, XML, Java, and the future of the Web, IBIBLIO (Mar. 10, 1997), http://www.ibiblio.org/
pub/sun-info/standards/xml/why/xmlapps.htm.
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PRINT ““).38 When the program runs, the PRINT statement tells the
computer to print out everything between the two quotation marks on each
line, exactly as it is shown in the program. As a computer hardware default,
the first mark displayed will be in the upper-left-hand corner of the screen.
To change this default, the LOCATE computer command is most typically
used. The format of the LOCATE command is LOCATE [row, column],
where row is the numerical position of the row starting point (normally 1
through 25, with 1 being the top row) and where column is the numerical
position of the column starting point (normally 1 through 80, with 1 being the
left-most column).
Nearly all graphic display mode software operates in a similar fashion.
For example, medium-resolution displays today are commonly 1024 by 768
pixels; low-resolution displays are 800 by 600 pixels; and minimumresolution
displays are 320 by 200 pixels, accessible even on a cell phone or a
hypothetical display used by the Text Display mode. If the screen used in
medium resolution graphics mode is expressed in terms of an X- and Y-axis,
then X corresponds to the columns and Y to the rows. The top left point on
the screen is (0,0) and the bottom right is (319,199). X increases as one
moves to the right across the screen, and Y increases as one moves down.
As in the case of the Text Display mode, the default for the starting point
for points, lines, and other shapes for medium resolution graphics mode is the
top left point on the screen. It should be noted that this default is also the
starting point for the positioning of the screen cursor.
Internet content is generally stored in arrays. An array is a structured
arrangement of items of computerized data in tabular form for easy reference.
For example, an array of even numbers might be 2, 4, 6, 8, 10, 12, stored in
such a way as to result in the display of “2” first when the array is called for
use by a computer program, “4” next when the array is called again, and so
on. It should be noted that an array also stores information concerning the
shape of the array. Thus, an array of even numbers may be stored as:
2 4 6 8 10 12
or
2 4 6
8 10 12.
The GET command stores the shape of the array. The format for a GET
command is usually GET (X1,Y1) – (X2,Y2), [Array Name] where X1, Y1
are the x and y coordinates of the top left corner of the rectangle that contains
the shape of the array; X2, Y1 are the x and y coordinates of the bottom right
of the shape of the array; and the Array Name is the computer location of the
content of the array.
38. IBM personal computers using DOS and some form of BASIC use PRINT followed by two sets of
quotation marks as their backup/default system.
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236 Washburn Law Journal [Vol. 52
The default for X1, Y1—the x- and y-coordinates of the top-left corner
of the rectangle that contains the shape of the array—is (0,0), which is the
upper-left-hand corner of the display screen. Thus, it is normal for the content
of the array to be displayed starting in the upper-left-hand corner of the area
designed to accept the array content.
The PUT statement displays on a computer screen the shape stored in the
array by the GET command. Once a shape is in the array, it can be PUT at
any location on the computer display screen. The format for PUT statements
is typically PUT (X1,Y1), [Array Name], where X1 and Y1 are the x- and ycoordinates
of the screen location to put the upper-left corner of the array
shape. The default for the PUT starting coordinates is (0,0), which is the
upper-left-hand corner of the display.
3. Programming Basis for Opening Internet Pages from Upper-Left Corner
Out
As noted above, HTML is the language of internet webpage
transmission.39 HTML is a markup/structured document language40 and is a
subset of the “SGML, the Standard Generalized Markup Language, .†.†. an
international standard (ISO 8879) that defines a syntax for the character
representation of structured information.”41 HTML describes a page from the
top down.42 From a programmer’s perspective, an Internet page is built as
follows:
<HTML>
<Head>
<Title>This is my webpage</Title>
</Head>
<Body>
<p>First paragraph</p>
<p>Second paragraph</p>
</Body>
</HTML>
The HTML rendering engines interpret HTML by opening the document from
the top (in a linear manner).43 Thus, Internet pages open from the upper-left-
39. Kevin Hughes, Entering the World-Wide Web: A Guide to Cyberspace, FACULTY OF ENGINEERING
AND PHYSICAL SCIENCES UNIVERSITY OF SURREY-GUILDFORD (Oct. 1993), http://info.eps.surrey.ac.uk/SCS/
manuals/WWW-Guide/.
40. Id.
41. Robert J. Glushko, How Practical is Practical SGML?, UC BERKELEY SCHOOL OF INFORMATION
(May 1, 1996), http://people.ischool.berkeley.edu/~glushko/glushko_files/PracticalSGML.pdf .
42. Eric Kasten, HTML: A Gentle Introduction, LINUX JOURNAL (July 1, 1995), http://
www.linuxjournal.com/article/1081.
43. See THOMAS A. POWELL, HTML: THE COMPLETE REFERENCE 1–17 (2d ed. 1998); see also Ola
Andersson, et al., Scalable Vector Graphics (SVG) Tiny 1.2 Specification Section 7.3: The Initial Coordinate
System, WORLD WIDE WEB CONSORTIUM (Dec. 22, 2008), http://www.w3.org/TR/SVGTiny12/
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hand corner out because in modern operating systems (Windows,44 Linux,
UNIX,45 and Java46), the coordinate system is defined as starting in the topleft
corner.
coords.html#InitialCoordinateSystem. Section 7.3 demonstrates “that the initial coordinate system has the
origin at the top/left with the x-axis pointing to the right and the y-axis pointing down.” Id.
44. Window Coordinate System (Windows), MICROSOFT (Oct. 25, 2012), http://msdn.microsoft.com/enus/
library/windows/desktop/dd145205(the=vs.85).aspx. The Windows development center explains,
The coordinate system for a window is based on the coordinate system of the display device.
The basic unit of measure is the device unit (typically, the pixel). Points on the screen are
described by x- and y-coordinate pairs. The x-coordinates increase to the right; y-coordinates
increase from top to bottom. The origin (0,0) for the system depends on the type of coordinates
being used.
The system and applications specify the position of a window on the screen in screen
coordinates. For screen coordinates, the origin is the upper-left corner of the screen. The full
position of a window is often described by a RECT structure containing the screen coordinates of
two points that define the upper-left and lower-right corners of the window.
The system and applications specify the position of points in a window by using client
coordinates. The origin in this case is the upper-left corner of the window or client area. Client
coordinates ensure that an application can use consistent coordinate values while drawing in the
window, regardless of the position of the window on the screen.
The dimensions of the client area are also described by a RECT structure that contains client
coordinates for the area. In all cases, the upper-left coordinate of the rectangle is included in the
window or client area, while the lower-right coordinate is excluded. Graphics operations in a
window or client area are excluded from the right and lower edges of the enclosing rectangle.
Occasionally, applications may be required to map coordinates in one window to those of
another window. An application can map coordinates by using the MapWindowPoints function.
If one of the windows is the desktop window, the function effectively converts screen coordinates
to client coordinates and vice versa; the desktop window is always specified in screen coordinates.
Id.
45. John R. Sheets, WRITING GNOME APPLICATIONS, Chapter 11, http://openbooks.sourceforge.net/
books/wga/gnome-canvas-coordinates.html (last visited Feb. 16, 2013). Mr. Sheets explains,
Window coordinates, the final coordinate system of interest to Canvas users, are rarely used within
the Canvas because most internal Canvas calculations use world coordinates. Instead window
coordinates are used usually outside of the Canvas. Like canvas coordinates, window coordinates
are pixel based, but they are relative to the upper left corner of the top-level window that owns the
Canvas, rather than to the upper left corner of the Canvas widget.
Id.; see also GnomeCanvas, THE GNOME PROJECT, http://developer.gnome.org/libgnomecanvas/2.30/
GnomeCanvas.html (last visited Feb. 16, 2013). The Gnome Development Center states,
There are several different coordinate systems used by GnomeCanvas widgets. The primary
system is a logical, abstract coordinate space called world coordinates. World coordinates are
expressed as unbounded double floating point numbers. When it comes to rendering to a screen
the canvas pixel coordinate system (also referred to as just canvas coordinates) is used. This
system uses integers to specify screen pixel positions. A user defined scaling factor and offset are
used to convert between world coordinates and canvas coordinates. Each item in a canvas has its
own coordinate system called item coordinates. This system is specified in world coordinates but
they are relative to an item (0.0, 0.0 would be the top left corner of the item). The final coordinate
system of interest is window coordinates. These are like canvas coordinates but are offsets from
within a window a canvas is displayed in. This last system is rarely used, but is useful when
manually handling GDK events (such as drag and drop) which are specified in window coordinates
(the events processed by the canvas are already converted for you).
Id.
46. The Java Tutorials: Coordinates, ORACLE.COM, http://docs.oracle.com/javase/tutorial/2d/overview/
coordinate.html (last visited Mar. 18, 2013). As shown in Figure 1-1, the user space origin is located in the
upper-left corner of the space, with x values increasing to the right and y values increasing downward. Figure
1-1 User Space Coordinate System User space represents a uniform abstraction of all possible device
coordinate systems. The device space for a particular device might have the same origin and direction as user
space, or it might be different. Regardless, user space coordinates are automatically transformed into the
appropriate device space when a graphic object is rendered. Often, the underlying platform device drivers are
used to perform this conversion.
See Fred Schwartz, Screen Coordinates, JAVA NOTES (Feb. 6, 2002), http://www.leepoint.net/notesjava/
GUI-lowlevel/graphics/10coord. Mr. Schwartz explains,
Java programs use an x,y coordinate system for all their graphic operations. The x coordinate
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238 Washburn Law Journal [Vol. 52
As a result, it is generally known and capable of accurate and ready
determination by resorting to reliable sources that Internet pages open from
the upper-left-hand corner out. The extent of the display of any particular
Internet page requested by an Internet user, however, depends upon the device
on which the Internet page is being displayed.
IV. POTENTIAL SIGNIFICANCE OF JUDICIAL NOTICE OF THE FACT THAT THE
INTERNET DISPLAYS THE UPPER-LEFT CORNER OF PAGES REQUESTED BY AN
INTERNET USER
Consumers and businesses are adopting and taking advantage of various
forms of Internet-related notices, particularly “terms of use” agreements,
which potentially change the relationship between an Internet site owner and
its users from public to private law.47
The enforceability of a “terms of use” agreement, however, will depend
upon whether it meets the classic requirements of a binding contract: (1)
parties capable of contracting48; (2) mutual assent49; and (3) consideration.50
is the pixel distance from the left. The y coordinate is the pixel distance from the top.
Note that the Java y coordinate system, like most other computer graphics systems, is
different from the normal math coordinate system where the y coordinate goes up from the bottom.
Id. (emphasis omitted); see also Coordinates, THE JAVA TUTORIALS, http://docs.oracle.com/javase/tutorial/
2d/overview/coordinate.html (last visited Feb. 16, 2013). An online Java tutorial states,
When the default transformation from user space to device space is used, the origin of user space is
the upper-left corner of the component’s drawing area. The x coordinate increases to the right, and
the y coordinate increases downward . . . .The top-left corner of a window is 0,0. All coordinates
are specified using integers, which is usually sufficient. However, some cases require floating
point or even double precision which are also supported.
Id.
47. “Public law” is defined as the:
definition, regulation, and enforcement of rights in cases where the state is regarded as the subject
of the right or object of the duty . . . and the law of the state, considered in its quasi private
personality, i.e., as capable of holding or exercising rights, or acquiring and dealing with property,
in the character of an individual.
BLACK’S LAW DICTIONARY 1106 (5th ed. 1979).
In contrast “private law” is defined as law “which is concerned with the definition, regulation, and
enforcement of rights in cases where both [parties] . . . are private individuals.” Id. at 1076.
Typically private law arises as a result of contract, property, and tort law disputes and results in rights
and duties that only bind the parties to the transaction. The contracts, such as the one formed by a proper
Internet “terms of use” agreement, allows for enormous variation by virtue of publicly enforced private law
created by such a contract.
48. See RESTATEMENT (SECOND) OF CONTRACTS § 12 (1981). The Restatement explains,
(1) No one can be bound by contract who has not legal capacity to incur at least voidable
contractual duties. Capacity to contract may be partial and its existence in respect of a particular
transaction may depend upon the nature of the transaction or upon other circumstances.
(2) A natural person who manifests assent to a transaction has full legal capacity to incur
contractual duties thereby unless he is
(a) under guardianship, or
(b) an infant, or
(c) mentally ill or defective, or
(d) intoxicated.
Id.
49. See id. § 18 (“Manifestation of mutual assent to an exchange requires that each party either make a
promise or begin or render a performance.”).
50. See id. § 71(1) (“To constitute consideration, a performance or a return promise must be bargained
for.”).
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If an Internet user is not capable of contracting due to lack of capacity, a
“terms of use” agreement will not be enforced. However, absent a lack of
capacity, if an Internet user reads a notice that clearly states that in exchange
for the right to access and use a particular Internet site, the user must agree to
a particular set of terms and conditions in order to access and use a particular
Internet site, and, after reading such a notice, the reader accesses and uses the
Internet site, a court would likely find mutual assent and consideration. This
assertion is supported by the enforceability of “shrink-wrap” agreements.51
“Terms of use” agreements are arguably more enforceable than “shrinkwrap”
agreements when it can be shown that the user has advance notice of
the existence of the “terms of use” agreement. For example, advance notice
could be shown if the Internet site required a potential Internet user to take
certain action that demonstrated the Internet user’s awareness of the “terms of
use” agreement. Such action could include clicking on an “I agree” icon as
part of a registration process to affirmatively manifest assent.
In the past it was argued that a site that had a “terms of use” agreement
was not enforceable if it did not require an affirmative manifestation of assent.
Without such affirmative manifestation of assent, such as “clicking” on an “I
agree” icon, there was no evidence that the Internet user had notice of the
“terms of use” agreement.52 Such an argument, however, could not presently
be made if the court took judicial notice of the fact that the Internet will
always display the upper-left-hand corner of each page that is requested by a
user and if the parties to the litigation stipulate that the “terms of use”
agreement was in the upper-left-hand corner of the page requested by the user.
It should also be noted that “[n]either real nor apparent intention that a
promise be legally binding is essential to the formation of a contract[.]”53
Thus, the fact that an Internet user who saw the “terms of use” agreement on
his computer after requesting a particular Internet page had no intention of
giving a legal promise to abide by the agreement does not void his assent to
be bound by the terms. Additionally, a “terms of use” agreement must be
capable of being given an exact meaning, and all the performances to be
rendered must be certain. Otherwise, the “terms of use” agreement will not be
enforced.54
51. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996); see also Hill v. Gateway 2000
Inc., 105 F.3d 1147, 1150 (7th Cir. 1997).
52. See Sharon K. Sandeen, The Sense and Nonsense of Web Site Terms of Use Agreements, 26
Hamline L. Rev. 499, 548–49 (2003) (stating that the recipient of a click-wrap agreement could manifest
assent by clicking on an “I agree” icon, whereas the manifestation of assent to a browse-wrap agreement can
only be inferred from inaction, and is thus unenforceable due to lack of assent).
53. RESTATEMENT (SECOND) OF CONTRACTS § 21.
54. See id. § 33. The Restatement indicates,
(1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be
accepted so as to form a contract unless the terms of the contract are reasonably certain.
(2) The terms of a contract are reasonably certain if they provide a basis for determining the
existence of a breach and for giving an appropriate remedy.
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240 Washburn Law Journal [Vol. 52
In order for a litigating party to avail itself of the advantages afforded by
posting “terms of use” agreements, it first must demonstrate to the trial fact
finder that its adversary was aware of such agreements. Typically, this
awareness is proven by presenting Internet traffic and communication data, as
well as expert testimony. However, the necessity of such formal proof can be
rendered unnecessary through the application of judicial notice.55
Judicial notice should be taken of an Internet user’s awareness of a
particular Internet site’s “terms of use” agreement when that agreement’s icon
appears in the upper-left-hand corner of the Internet page. Such treatment is
justified by: (1) the defaults built into computer graphic software that almost
universally use the upper-left-hand corner as a starting reference point; (2) the
Internet programming protocol that requires Internet users to adhere to a set of
technical rules about how information should be transmitted and received by
computers; and (3) the courts’ standards for the use of judicial notice.
The U.S. Supreme Court has taken judicial notice of the fact that
billboards, street car signs, placards, and such, unlike newspaper and
magazine advertisements, are in a class by themselves because they “thrust”
their message on the viewer.56 The Court found that billboards, street car
signs, and placards deprive the viewer of any real choice over whether to
receive the message.
In comparison, the upper-left-hand corner of an Internet page is like a
billboard, a street car sign, or a placard because it is constantly before the eyes
of observers without the exercise of choice or volition on the part of the
viewer. Internet users have no choice but to view the upper-left-hand corner
of any page they electronically request from the Internet. Although a viewer
may move his eyes from billboard to billboard or move from Internet page to
Internet page, the content of both the billboard and the upper-left-hand corner
of any Internet page are before him regardless of choice or volition.
In the case of newspapers and magazines, the viewer must seek and find
the advertisement. Similarly, in the case of a television or radio,
advertisements can be turned off. In the case of requesting an Internet page,
however, once the Internet request is made, the Internet will always display
the upper-left-hand corner of the requested page. Therefore, the user need not
seek the upper-left-hand corner of a webpage, nor is the Internet user able to
turn it off. Consequently, courts should treat the upper-left-hand corner of
any page like a billboard or street car sign.
(3) The fact that one or more terms of a proposed bargain are left open or uncertain may show that
a manifestation of intention is not intended to be understood as an offer or as an acceptance.
Id.
55. Black’s Law Dictionary defines judicial notice as “[t]he cognizance of certain facts which [courts]
may properly take and act upon without proof, because they already know them.” BLACK’S LAW
DICTIONARY 761 (6th ed. 1990).
56. Packer Corp. v. Utah, 285 U.S. 105, 110 (1932).
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If a court treated the upper-left-hand corner of an Internet page like a
billboard or street car sign and took judicial notice that a particular Internet
user’s computer displayed a “terms of use” icon in that corner, then the
Internet site’s “terms of use” agreement would be binding upon the user in
accordance with the findings of Carnival Cruise Lines v. Shute.57 In Carnival
Cruise Lines, a Washington resident was injured in international waters off
the coast of Mexico and filed an action in the U.S. District Court of
Washington.58 The U.S. Supreme Court upheld the dismissal of a personal
injury claim filed in Washington because the plaintiff failed to abide by a note
on the ticket that referred her to a contractually-stipulated Florida forum.59
In particular, the face of each ticket, in its lower-left-hand corner,
contained this admonition:
“ ‘SUBJECT TO CONDITIONS OF CONTRACT ON LAST PAGES
IMPORTANT! PLEASE READ CONTRACT—ON LAST PAGES 1, 2, 3’
App. 15.”60
Appearing on the first contract page was the following:
TERMS AND CONDITIONS OF PASSAGE CONTRACT TICKET
. . . . .
3. (a) The acceptance of this ticket by the person or persons named hereon as
passengers shall be deemed to be an acceptance and agreement by each of them
of all of the terms and conditions of this Passage Contract Ticket.
. . . . .
8. It is agreed by and between the passenger and the Carrier that all disputes and
matters whatsoever arising under, in connection with or incident to this Contract
shall be litigated, if at all, in and before a Court located in the State of Florida,
U.S.A., to the exclusion of the Courts of any other state or country.61
The rationale in Carnival Cruise Lines may be used in combination with
judicial notice to conclude that an Internet user is aware of a particular
Internet site’s “terms of use” agreement when such site’s “terms of use”
agreement icon appeared in the upper-left-hand corner of an Internet page.
Such a combination could save a significant amount of court resources.
A two-step process is required to achieve these desired court resource
savings. First, a court would instruct the jury that a particular Internet user’s
computer displayed a “terms of use” icon after the court has taken judicial
notice of the fact that the Internet will always display the upper-left-hand
corner of a webpage and that the icon was in the upper-left-hand corner of the
page. Next, relying on Carnival Cruise Lines, the jury would be instructed
that those with notice of a “terms of use” agreement are obligated to abide by
it whether they chose to read it or not, unless the agreement itself is unlawful.
57. 499 U.S. 585 (1991).
58. Id. at 585.
59. Id. at 594.
60. Id. at 587 (emphasis omitted).
61. Id. at 587–88.
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242 Washburn Law Journal [Vol. 52
V. OTHER INTERNET-RELATED FACTS THAT MAY MERIT JUDICIAL NOTICE
In addition to taking judicial notice of the upper-left-hand corner of an
Internet page, there are other Internet-related facts that merit judicial notice.
Judicial notice of the following facts should be considered: (1) email
messages are copied by third-party computers during transmission; (2) all
Internet content is digital; (3) the Internet operates at near light speed, which
on a planet this size amounts to near real-time; (4) webpages may be viewed
on any operational computer with an Internet connection and a web browser;
(5) the Internet has the ability to make software and data files available for
downloading; (6) the Internet has no irreplaceable central control,
administration, or authority; and (7) the United States controls domain name
transfers.62
The significance of taking judicial notice of such Internet facts varies.
The ability to instruct a lay jury regarding technical Internet facts can be
especially significant. Consider the following six scenarios in which certain
Internet facts need not to be proven to a jury.
First, a jury could be instructed that the Internet is able to adapt itself
almost instantaneously to damages or outages to individual sections of the
Internet.63 This fact means that the loss of individual computers and networks
does not affect the Internet’s overall flexibility, accuracy, or speed. If a court
takes judicial notice of this fact, then it need not be proven that the loss of any
individual computer did not affect the Internet’s overall performance.
Second, a jury could be instructed that Internet communications travel at
near light speed of approximately 186,000 miles per second. This fact means
that even if two computers are half a world apart, they will only experience a
tenth of a second in communications delay. If a court takes judicial notice of
this fact, then it need not be proven that Internet communications are nearly
real time.
Third, a jury could be instructed that the Internet is based on a common
standard—the TCP/IP network protocol. This fact means that the Internet
provides all computers with access to the network with the same technical
interface and capabilities. If a court takes judicial notice of this fact, then it
need not be proven that the Internet provides universal access, giving the
same powerful capabilities to everyone with access to the network no matter
where they are.
62. A “domain name” is a user-friendly alphanumeric address associated with one or more computers
connected to the Internet used in lieu of a numeric address for those computers. A numeric address is also
known as an IP address.
63. See Religious Tech. Ctr. v. Netcom On-Line Commc’n. Servs. Inc., 907 F. Supp. 1361, 1370 n.13
(N.D. Cal. 1995) (“The decentralized network was designed so that if one link in the chain be closed off, the
information will be dynamically rerouted through another link.”).
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Fourth, a jury could be instructed that the Internet is based on digital data
and that it uses TCP.64 This fact means that Internet communications cannot
be changed or become distorted over time or in transmissions between sites.
If a court takes judicial notice of this fact, then it need not be proven that a
website does not age and become fuzzy or garbled over time, and that the
characters in an email are not transposed or mixed up when they are sent over
long distances.
Fifth, a jury could be instructed that all email communications use the
standard programming protocol, TCP/IP, upon which inter-computer
communications are based. This fact means that all emails have TCP error
control information; when an email is sent, “TCP receives the packets and
checks for errors[, and w]hen an error occurs, TCP asks for the particular
packet to be re-sent.”65 If a court takes judicial notice of this fact, then it need
not be proven that the email message received was error-free. Therefore, an
email received has the same content as the email that was sent. Similarly,
because all email communications use the TCP/IP standard upon which intercomputer
communications are based, all emails contain embedded data that is
affixed to the document at its creation and at subsequent times when handled
by other computers that promoted its travel. If a court takes judicial notice of
embedded data, then it need not be proven that the embedded data exists, thus
allowing the court to focus directly on the meaning of that data, such as the
identity of the author, the creation date, and the data concerning
authenticity.66
Sixth, a jury could be instructed that all Internet communications require
one or more third-party computers as part of the transfer process, and that
Internet programming protocols do not require said third-party computers to
erase data that passes through them.67 These facts mean that email and
requested Internet webpage files remain within the transfer computers as
residual data on existing “free space.”68 If a court takes judicial notice of
these facts, then it need not be proven that the residual data exists, thus
allowing the court to focus directly on the meaning of that data, such as the
content of the Internet communication, the identity of the author, the creation
date, and the data concerning authenticity.
64. See Galloway, supra note 29, at 23 (“TCP makes communication on the Web notably reliable:
information is monitored during transport and is re-sent if lost or corrupted.”).
65. Richard Allan Horning, Has HAL Signed a Contract: The Statute of Frauds in Cyberspace, 12
SANTA CLARA COMPUTER & HIGH TECH. L.J. 253, 258 (1996).
66. For example, the relationship and arrangement of the embedded data in a particular email file,
when compared with other electronic files in a directory listing, may offer helpful information regarding its
authenticity. This data can be particularly useful when the authenticity of an email is disputed.
67. See Religious Tech. Ctr., 907 F. Supp. at 1370 (detailing how Internet communications travel
between and among computers).
68. It should also be noted that there are off-the-shelf software programs that can quickly retrieve
“deleted” files that have not been overwritten. Additionally, expert technicians can generally recover files
that have been overwritten. See Alexander v. FBI, 188 F.R.D. 111, 116–17 (D.D.C. 1998).
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244 Washburn Law Journal [Vol. 52
VI. CONCLUSION
The fact that Internet pages open from the upper-left-hand corner out is
capable of accurate and ready determination by resorting to sources whose
accuracy cannot reasonably be questioned. Furthermore, there are other
Internet-related facts that merit judicial notice. Because taking judicial notice
will save judicial resources and save litigants time and effort, courts should
take judicial notice of these Internet programming protocols.