The U.S. District Court ruled this month that Google’s copying and caching of a story that author and attorney Blake Field posted on his Website did not violate copyright law.
A Nevada judge has ruled in favor of Google Inc. in a copyright case that legal experts said could be helpful in its defense against lawsuits filed by writers and publishers challenging the search engine’s initiative to scan and store copyrighted library books.
The case was filed by author and attorney Blake Field who argued that the search giant had illegally made copies of his website, which holds copyrighted materials, and stored them in its cache.
Creating temporary copies of web pages allows Google to search and index the contents of the internet more efficiently. The engine provides users with access to this copied information through a ‘cached‘ link in the search results.
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, the judge ruled.
Exonerating Google, the judge ruled that the Web user clicking on "cached" link and not Google is responsible for making the actual copy of the Web site.
In issuing the ruling, federal Judge Robert Jones found that serving pages from the Google cache was protected under the Digital Millennium Copyright Act, which allows service providers to provide links to material on the Web; and that Field chose not to use a “meta tag” on his page to prevent it from being searched and cached.
Judge Jones went on to note that the use of a cache is generally accepted within the online search sector, and that website operators can opt out from being indexed by using special tags in their web pages or by offering a ‘robots.txt‘ file.
Field had made a robots.txt file available on his website, and was aware of the opt-out facility. This provided an implied license to the search engine, according to the ruling.
Most importantly, as it relates to the library project, Jones found that Google’s storage of the material was "fair use" under copyright law. In defending the library project, Google points to fair use, an exception in the U.S. Copyright Act that allows for the reprinting of portions of copyrighted material for certain purposes, such as criticism, comment, news reporting, teaching, scholarship and research.
In addition, Google’s library project offers less material than in the Field case. In the library project, Google says it would only show snippets from copyrighted books, unless it has permission to display more. In the Field case, Google displayed the whole story.
Jonathan Band, a Washington, D.C., attorney specializing in intellectual property rights, said the finding helps Google, based in Mountain View, Calif., because it confirms the search engine’s fair-use argument. "This is a useful precedent for Google," Band said.
Arguably, what Google is doing in the library project is more modest, Band said.
Deborah A. Wilcox, an IP attorney at the Cleveland law office of Baker and Hostetler LLP, said the Nevada ruling could have a "marginal impact" in favor of Google in the library case. In both cases, Google is taking some else’s work and using it in a way that was not originally intended, namely having it available for someone to find on the Web. In the Field case, the judge ruled that was OK under fair use.
The fair use question is also at the heart of the library case, Wilcox said.
Band expects writers and book publishers to argue that the Internet is different from the analog world, and laws governing the use of copyrighted material on the Web — does not necessarily fit the latter. In the library project, for example, Google is not using computer systems to search for material, but is physically scanning books into its database.
The Association of American Publishers and the Authors Guild sued Google last year, challenging the project and arguing the company needs to have permission to copy protected works. Both cases are pending.
Nevertheless, the facts in the two cases are very different, so the impact from the latest decision would be small, Wilcox said.
Under the library project, Google plans to digitize books from the collections of Stanford University, Harvard University, the University of Michigan, Oxford University and the New York Public Library. The latter two are making available only books in the public domain.
Judge Jones also ruled that Google’s copy of Field’s works qualified as "fair use". The cache ensures access to the information in case of outages, and serves as a potentially useful archive that allows users to detect changes on a website.