This small lawsuit brought by a single individual has large implications. Author and attorney Blake Field served Google
with an infringement claim over the Google's cache feature, which makes, stores, and distributes copies of Internet
pages, without permission. This issue has, for year, been ripe for testing. The implications for the Google Print
Libraries project (currently under seige by two major lawsuits) is direct. If Google were ever prohibited from
continuing its caching practice, it would certainly be prohibited from "caching" books--which is what Google
Print amounts to.
Blake Field lost, in a summary judgment.
According to the EFF, the court's decision contained four
major points. Rather than risk making errors in describing these lawyerly distinctions, I'll quote from the EFF and add
commentary. I am not a lawyer, but many years of following new-era copyright struggles have given me a fair layperson's
understanding of the issues.
Serving a webpage from the Google Cache does
not constitute direct infringement, because it results from automated, non-volitional activity by Google servers (Field
did not allege infringement on the basis of the making of the initial copy by the Googlebot). I'm astonished to
hear Google's cache described as "non-volitional," simply because Google's volition is carried out by
automated software.
Field's conduct (failure to set a "no
archive" metatag; posting "allow all" robot.txt header) indicated that he impliedly licensed search
engines to archive his web page. This is the most amazing of all, and related directly to Google's attempt to
copy books belonging to publishers who have not opted out of Google Print. The idea of implied licensing
on
this scale is new, I think, and indicates that we might be moving into a new definition of fair use.
Traditionally, it is the user who must opt in to a licensing agreement with the owner; not the owner needing to opt out
of the user's willy-nilly copying.
The Google Cache is a fair use.
It is a judge's prerogative to rule fair use; that decision is always made case-by-case. But, predicated on the
previous two points, I feel the question has remained relatively unexplored.
The Google Cache qualifies for the DMCA's 512(b) caching "safe harbor" for online service
providers. This part of the ruling is entirely agreeable. (
Check here for a
description of this DMCA clause.) Wouldn't it have been sufficient without questionable fair use judgments?