Google is certainly keeping its lawyers busy. Google recently won a favorable ruling in a case (Field v. Google, filed in the District of Nevada) challenging its ability to make and offer cached versions of web pages on the internet. The plaintiff, an enterprising lawyer, placed a number of copyrighted files on a web site, waited for Google’s Googlebot to visit and cache his site, and then sued Google for copyright infringement, claiming $2.5 million in statutory damages.
The court granted Google’s motion for summary judgment on a number of grounds, the most interesting being (1) implied license, and (2) fair use. I think the specific facts of the case make it hard to say how wide-ranging the implied license ruling will be. In this particular case, it was clear that the plaintiff was aware that he could use a standard protocol (the “no-archive” meta-tag) to tell Google not to archive his site, but consciously did not do so. Thus, the case doesn’t speak directly to the situation where someone does not have actual knowledge. However, some of the language in the opinion suggests that the protocol is so widely-known that individuals may be charged with this knowledge. If so, this may signal the increasing availability of protocol-based implied license arguments.
On the fair use front, the court held that Google’s cached versions of web pages were transformative. Even though the cached versions were close to literal copies of the original pages, the court held that that they served different purposes, namely: (1) making available pages that are no longer directly accessible; (2) permitting users to track changes in web pages over time; (3) helping users understand why the page was listed in the response to the search query. The decision follows the cue of the Ninth Circuit in Kelly v. Arriba Soft, interpreting “transformative” in a broad manner based on the intended use of the copied work.