INTERNET LAW - Google's Cached Links do Not Violate the U.S. Copyright Act

Martha L. Arias, Immigration & Internet Law Attorney, Miami; IBLS Director
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It may not be that difficult to write a book titled “Google"s lawsuits;” at least, the material is abundant. Google is already known for defending multiple lawsuits, particularly those related to intellectual property and privacy violations. Hence, it is also a fact that Google has won most of those lawsuits because, let’s face it, many of them are frivolous suits -you may read 'gold-diggers’ suits. This article presents an example of a Nevada lawsuit against Google in which an author claimed that Google violated the U.S. Copyright Act when users used Google’s cached links.

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It may not be that difficult to write a book titled “Google"s lawsuits;” at least, the material is abundant.  Google is already known for defending multiple lawsuits, particularly those related to intellectual property and privacy violations.  Hence, it is also a fact that Google has won most of those lawsuits because, let’s face it, many of them are frivolous suits -you may read 'gold-diggers’ suits. This article presents an example of a Nevada lawsuit against Google in which an author claimed that Google violated the U.S. Copyright Act when users used Google’s cached links.

In Field v. Google Inc., 412 F. Supp. 2d 1106, (U.S. Dist. Ct. Nevada 2006), a U.S. district court granted summary judgment for Google in a copyright infringement suit.  The plaintiff was an author who published fifty works on his personal website, plus another copyrighted work titled Good Tea. The plaintiff filed a lawsuit against Google asserting a claim for copyright infringement based on Google’s alleged copying and distribution of his work Good Tea and the fifty works the plaintiff published in his website.  Concretely, the plaintiff alleged that Google violated his copyrighted works by allowing Internet users to access those 51 copyrighted works stored in Google’s index.  The plaintiff claimed that by doing this, Google violated his exclusive right to reproduce and distribute copies of those works.  The plaintiff asked for over US$ 2 million in statutory damages. Google filed a motion for summary judgment.

The court found that Google was entitled to judgment as a matter of law based on the undisputed facts. The court held that Google (1) did not directly infringed the copyrighted works at issue; (2) that Google held an implied license to reproduce and distribute copies of the copyrighted works at issue; (3) that the plaintiff is estopped from asserting a copyright infringement against Google concerning the works at issue; (4) and that Google’s use of the works is a fair use under the U.S. Copyright Act, 17 U.S.C. § 107.  The court also held that the plaintiff was not entitled to statutory damages by operation of the Safe Harbor provision of section 512(b) of the Digital Millennium Copyright Act (DMCA).      

Some of the relevant and decisive facts in this case were (1) that Google is the world’s largest and most popular Internet search engine that indexes billions of web pages through the use of a Googlebot, an automated program that continuously crawls the Web; (2) that once Google stores those Web pages in a repository called ‘cache;’ (3) that the user can easily see the word ‘cached,’ and a link that takes users to the requested page; (4) that the cached page contains a conspicuous disclaimer at the top of the page informing users that it is only a snapshot from Google’s cache, not the original page, and that the page from the cache may not be current. The cached page also contains another link to the original page; (5) Web site owners may use ‘meta-tags’ to communicate with Google’s robot.  Through these meta-tags, a page owner may give commands to avoid being indexed by Google’s system; and (6) a Web site owner may also place a ‘robot.txt’ file on his Web site.  This file tells Google’s crawlers not to crawl the owner’s Web site.  The plaintiff knew that he could use the ‘robot.txt file to avoid Google’s crawler into his page, and that he could use meta-tags to avoid being indexed in Google’s cache.

Thus, the district court held that “the automated, non-volitional conduct by the search engine's computers in response to users' requests did not constitute direct infringement under the Copyright Act.”  The court further noted that the plaintiff’s decision not to include a no-archive meta-tag in his Web site that contained the copyrighted works, knowing that research engines would interpret this absence as permission to allow access to the pages via cached links could be reasonable interpreted as a license to a search engine for that use.  “Because the search engine served different and socially important purposes in offering access to copyrighted works through cached links and did not merely supersede the objectives of the original creations, the court concluded that its alleged copying and distribution of the author's copyrighted works was transformative.”

Thus, the use of cached links is not a violation of copyrights; instead, the alleged copying and distribution of copyrighted works through the cached links is considered transformative.  Most people may agree with this holding.  We know that a search engine such as Google is not in the business of distributing written works or benefiting from such distribution. Google’s business objective is clear; it is a search engine or an online directory that provides access to the Web billions of addresses and material.  Indeed, many Web page owners pay third parties to be listed first in Google’s page.  If an author or Web page owner does not want any search engine to crawl its page, there are technical means to be used; so let’s use them before suing.  That may be helpful and save some time for the judicial system.

Martha L. Arias, Immigration & Internet Law Attorney, Miami; IBLS Director

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