A man has mostly failed in his bid to sue the companies over
their publishing of material from his website via their search
engines. Each company copied the material to an archive on its own
servers and made that available to users via a 'cache' link.
Search engines give users access to copies of entire pages that
feature in their search results in case the source site is
unavailable at the time that a search is conducted.
People who publish material online and do not want search
engines to index their material can indicate that by publishing a
small file on their web server called robots.txt. The file contains
instructions for search engines. If they do not want pages to be
archived by search engines, a short line of code can be included in
the pages with the 'noarchive' instruction.
Gordon Roy Parker has published on his website works in which he
holds the copyright, including 'Outfoxing the Foxes' and 'Why
Hotties Choose Losers', which are freely available on his site. He
took a case against Microsoft and Yahoo! arguing that their search
engines' storage of his material is a breach of copyright law.
Judge Mary A. McLaughlin in the US District Court for the
Eastern District of Texas said that a licence to use material can
be implied when the user knew about the practice of another party
and did not stop it, as in the case of robots protocol.
"Generally, a court can find an implied license 'where the
copyright holder engages in conduct from which [the] other [party]
may properly infer that the owner consents to his use'," she said,
quoting a previous case. "Various courts have found that silence or
lack of objection may also be the equivalent of a nonexclusive
license, especially where the plaintiff knows of the defendant’s
use and encourages it."
The judge referred to a previous case involving online
publishing, Field v Google. In that case, a district court had
agreed that the robots.txt file was an agreed industry standard,
and that Google, the search engine involved in that case, could not
contact every publisher before archiving content and that it had
established a defence that it had an implied licence to archive the
material.
Microsoft and Yahoo! argued that Parker's failure either to use
the robots protocol or to serve them with take-down notices under
US copyright laws meant that they had implied permission to archive
the material.
The Court mostly agreed with them. "[Parker's complaint]
suggests that Parker knew that as a result of his failure to abide
by the search engines' procedures, the search engines would display
a copy of his works. From Parker's silence and lack of earlier
objection, [Microsoft and Yahoo!] could properly infer that Parker
knew of and encouraged the search engines' activity, and, as did
[Google when being sued by Field], they could reasonably interpret
Parker's conduct to be a grant of a license for that use," said
Judge McLaughlin.
The judge did not rule Parker's claims out completely, though,
because the search engine companies had continued to publish the
material after Parker had begun legal action, an act which they
should maybe have taken to have been a revocation of any implied
licence.
"This continued use over Parker’s objection might constitute
direct infringement," said the ruling.
The Court did not decide the issue, but said it would hear
argument on it in the future.
Parker had also tried to argue that users of Microsoft's and
Yahoo!'s archived copies of his works were infringing his
copyright. The Court did not accept that argument because Parker
made his works freely available on his website.
The Court threw out almost all of Parker's claims. The only
claims that were allowed for future consideration by the court were
the direct copyright infringement claims related to the companies'
making available of the material after the filing of the
lawsuit.
