Out-Law News 2 min. read

Search engine cache does not infringe copyright, rules US court


A court has ruled that Yahoo! and Microsoft had an implied licence to copy and display pages from a website because the operator of that site knew how the search engines' opt-out procedures worked but chose to ignore them.

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.

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