Use of the material is a fair use, said the Court.
About Google's cache
Google refers to its cache to assess whether a page matches a
search term. If it had to scan and assess every live web page in
real time it would be a painfully slow search engine.
Access to the feature can be found at the foot of individual
search results, where the word ‘cached’ appears as a link if
the service is available. Google does not run the feature for sites
that have not been indexed, or where site operators have requested
that their content be left uncached. Such requests can be made with
meta tags, the hidden HTML of a web page that provides information
for a search engine.
Google promotes its cache as a back-up service that
users can access if the original page is unavailable; but
it highlights each cached page as one that may not be the most
up-to-date. The headline link in search results goes to the
current page.
However, there has been concern as to whether this wholesale
copying, storage and provision of web pages is a breach of the
copyright held in those pages by authors and website operators.
According to Judge Robert C Jones of the Nevada District Court,
the answer is no.
The ruling
The case was brought by author and lawyer Blake Field who had
taken exception to Google’s caching of stories posted by Field
on his website. He brought an action for copyright infringement,
arguing that the Google cache feature allowed web users to access
copies of his copyrighted material.
Judge Jones was not impressed.
“When a user requests a web page contained in the Google cache
by clicking on a 'Cached' link, it is the user, not Google, who
creates and downloads a copy of the cached web page. Google is
passive in this process,” he wrote.
“Without the user’s request, the copy would not be created and
sent to the user, and the alleged infringement at issue in this
case would not occur. The automated, non-volitional conduct by
Google in response to a user’s request does not constitute direct
infringement under the Copyright Act,” he added.
In addition, the fact that Field, who had admitted he knew how
to disable the caching feature, had not done so created an
implied licence in favour of Google, said Judge Jones. He
also found that Google was entitled to the defence of
estoppel, which stops a plaintiff from enforcing
his rights if to do so would be unfair on the defendant.
Judge Jones reasoned that Field had known in advance what Google
would do if he posted stories on his website; he had known how to
prevent the caching, but had not tried to prevent it – so Google
was unaware that he did not want his web pages cached. As a result,
“Google detrimentally relied on Field’s silence,” wrote Judge
Jones.
The judge then turned to the defence of fair use, finding that
Google’s use of the copyrighted material was a fair
use. He wrote:
“Because Google serves different and socially important purposes
in offering access to copyrighted works through 'Cached' links and
does not merely supersede the objectives of the original creations,
the Court concludes that Google’s alleged copying and distribution
of Field’s web pages containing copyrighted works was
transformative.”
This is an important element in establishing a fair use
defence.
Nor was there any evidence that Google had
profited from the use of Field’s works. The fact
that Google was a commercial operation was not outweighed by the
transformative purpose behind the search engine’s use of the web
pages, according to Judge Jones.
The fact that Google had cached whole web pages, rather than
parts of them, was not really relevant either.
“Google’s use of entire web pages in its Cached links serves
multiple transformative and socially valuable purposes. These
purposes could not be effectively accomplished by using only
portions of the web pages,” explained the opinion.
In addition, Field had not demonstrated any market for his works
that could be affected by the caching, nor in general terms, had
the court seen any evidence “of any market for licensing search
engines the right to allow access to web pages through “Cached”
links, or evidence that one is likely to develop.”
Taking all these factors into account, together with the fact
that Google had acted in good faith in providing the cache feature,
Judge Jones found that Google had been making a fair use of Field’s
material.
Finally, Judge Jones considered the question of the
controversial 1988 Digital Millennium Copyright
Act (DMCA), which provides a defence to service providers
for the “intermediate and temporary storage of material on a system
or network controlled or operated by or for the service
provider”.
This was available to Google, said the Judge, because Google
stores the web pages for around 14 to 20 days only, and this was
“temporary” within the meaning of the Act.
Rights group the Electronic Frontier Foundation (EFF), which was
not involved in the case, welcomed the ruling.
"This ruling makes it clear that the Google Cache is legal and
clears away copyright questions that have troubled the entire
search engine industry," said Fred von Lohmann, EFF senior staff
attorney. "The ruling should also help Google in defending against
the lawsuit brought by book publishers over its Google Library
Project, as well as assisting organisations like the Internet
Archive that rely on caching."
Caching in the UK
In the UK, the E-commerce Regulations protect
search engines. They provide that a company like Google will not be
liable in damages (or other remedy or criminal sanction) where the
caching is "automatic, intermediate and temporary for the sole
purpose of providing a more efficient service".
Relevance to Google Print dispute
Google is currently being sued by US authors and publishers over
its Google Print project, an ambitious plan to digitally scan
library collections so that books can be matched to internet search
queries.
The company has been accused of copyright infringement on a
massive scale because the scanning takes place without permission
from copyright holders.
A user searching Google Print sees links on the results
pages when there are books relevant to his query. Clicking on a
title will deliver a page from which the user can either browse the
full text of the work – if copyright has expired – or brief
excerpts and/or bibliographic data where the work is still
protected by copyright. Links to booksellers are also provided.
Google says this is a fair use, not infringement. It is, in
effect, caching the books to assist with search
activity. The company stops short of revealing any more
than minimal information without express permission.
Google has invited any copyright holder to opt-out; but the
upset copyright holders argue that Google's activities should be
opt-in.
While only a district court ruling, Judge Jones's opinion
supports the arguments that Google has asserted over Google Print
which have still to be tested in court.
