Google's Cache Ruled Fair Use

jbarr writes "An EFF Article states that: 'A district court in Nevada has ruled that the Google Cache is a fair use ... the Google Cache feature does not violate copyright law.' Notable is the basis that 'The Google Cache qualifies for the DMCA's 512(b) caching 'safe harbor' for online service providers.'" From the article: "The district court found that Mr. Field 'attempted to manufacture a claim for copyright infringement against Google in hopes of making money from Google's standard [caching] practice.' Google responded that its Google Cache feature, which allows Google users to link to an archival copy of websites indexed by Google, does not violate copyright law."

Comments

A new search engine is in order

[imoou]

So if someone created a search engine which automatically, randomly and non-volitionally searches and caches MP3 files from websites which do not have "no archive" metatag, it's not breaking the law?

When those searched websites disappeared, this search engine may still serve those cached MP3 files for archival purposes?

Re:A new search engine is in order

[Ninwa]

Maybe... but there's a difference. That difference is that the items cached were already in violation of copy right law, most likely. Interesting though... and doesn't archive.org archive files? I know they've archived several small programs I've written that were linked on my site at one point in time.

I don't like this ruling.

[mumblestheclown]

Intellectually, I don't like this ruling one bit. "Fair Use" is broadly supposed to have minimal to nil financial effects on the copyrightholder and in general the "fair user" is doing the using for personal reasons. Google's cache is basically a large-scale financial transfer from the copyrightholders (who serve to benefit from the ads they serve and other interaction they get from end-users visitng their site) to google, who benefits directly by keeping people longer on google's site and thus, basically, shucks them more ads. Rememeber folks, in terms of the cache here, we're referring to google's ability to serve content IN ITS ENTIRETY to end-users - we're not talking about those tiny snippets needed to make search engine results useful.

Those of you who do the "yesbutNOCACHEtag" dance have got it backwards to: it's not the responsibility of the copyrightholder to sing to the tune of whatever the latest fad is. Rather, it's the other way around - google should convince people that it's in their interest to put a "CACHEME!" tag.

Re:I don't like this ruling.

[mumblestheclown]

It seems a stretch to argue that Google is providing this service for financial gain. For starters, when a user pulls up a Google cached page, they don't get Google's ads on that page.

Nonsense. Google gains by drawing attention to itself and its other offerings. Let me ask you this simple question: if google doesn't gain financially, even if indirectly, why do they do it? Goodwill? Poppycock.

They get, as you noted, the actual site as it was when Google cached it, complete with that site's ads, if there are any.

Not really. For, as you mentioned in your next statement, the cached site loses its visual look and feel, including often graphics which can be ads. At the very least, it could be seen as damaging the site.

But, forget that - the real issue is control. You are basically saying that GOOGLE has the right to display YOUR content as GOOGLE sees fit. Regardless of whether you think google's cacheing of entire web pages is good, bad, or indifferent for web sites on the whole, the decision of whether to allow this should be only with the web sites and the DEFAULT situation, therefore, should be "NO." OF COURSE multi-billion dollar companies like yahoo have the necessary soapbox and budget to convince people to put "CACHEME=YES" tags.

I remind you, for example, that no-cache tags are followed only as a courtesy. According to this ruling, there is no particular reason (as I understand it) that a search engine or anybody else would need to honor this ("oh - we don't understand that particular nocache tag - for us not to cache you, you need to use the NoCacheXYZ tag").

Finally, your argument about "the site being down" holds no water. Often, the site is down BECAUSE THE MAINTAINER WANTS TO BRING IT DOWN. This should be the site owner's right. In the google cache situation, the owner effectively loses that right. Again, if you think that having a cache of your site for when your site is unavailable is wonderful, then agree with google to have a CACHEME=YES tag. It's a win-win and mutually agreed upon contract at that point.

In other news, explain to me again why if this is fair use, why i can't make photocopies of every book in the bookstore (for example, without photos) and offer them for free reading in my coffeeshop? remember, we're not talking about one or two books for the interested reader - we're talking about a basically free borders or barnes and noble. you'd be free to read the entire book at your leisure - for books consisting mostly of text, you'd be basically getting the whole thing free. and, if you buy some coffee, that's great too. look - i know real world analogies to the internet don't often make sense, but in this case i think my giant coffee shop isnt too far off.

Re:I don't like this ruling.

[Goldsmith]

Before you continue to smash people over the head with blunt and incorrect legal arguments, you should actually read the law which was referenced. You may find that it is not any clause defining Fair Use as you have quoted in other places, but rather a clause on catching. The link is right there on the front page.

As you have said:
"Unfortunately, while you may WISH this to be the case, this is not what the law says. Your wishful thinking doesn't make your statement true. You've basically invented your theory out of whole cloth, or, put another way, pulled it out of your ass."

Re:I don't like this ruling.

[Routerhead]

The moment one decides to put something on the Internet, he loses a large chunk of control over that content. Caching is an inherent, and necessary, component of Internet technology. Searching as a whole does not work without it.

Your original post was that the original site owner was entitled to relief because of lost financial gain (due to users viewing Google's ads rather than his own). You now present a new argument: content control. However, posting any content on the Internet is entails a conscious surrender of control, and in the bargain that control is surrendered for convenience: distribution, access, attention, what have you.

As to your coffee shop analogy, there is a significant difference. Google is not making any money from its action. No Google ads appear on the cached sites, unless they were there already. In your coffee shop, you are selling coffee to those photocopy readers. Google is not, as you condeded above. For a copyright violation to take place, the violator has to be receiving a material gain. It is not at all clear that Google is receiving any financial gain.

As for metatagging, no standard exists. You are arguing for a standard (be it an opt-in or opt-out). I agree that a standard should exist. However, in the specific case of Google, Google is clear in describing the steps that a site administrator can take to exclude its content from Google's cache.

I'm not trying to suggest that this is a one-way street and that no copyright protection exists for Internet content, but, particularly in this case, it's hard to see that Google was stealing his site or its contents.

Re:I don't like this ruling.

[slackmaster2000]

Sorry. I'm on your side to some degree in this argument, but your claim that google isn't gaining financially isn't true.

Google offers its cache as part of its search engine service. The service itself makes money, and is popular for its entire featureset. Just because a specific feature does not itself generate revenue doesn't mean that it doesn't indirectly contribute to financial gain.

A bathroom in a coffee shop is a really nice feature that doesn't itself generate a single dime.

Anyhow, you don't have to be making money from copyright material to be infringing on a copyright, so this whole part of the argument is kind of pointless.

Re:I don't like this ruling.

[pthisis]

1. That has little to do with the post I responded to which claimed that Fair Use" is broadly supposed to have minimal to nil financial effects on the copyrightholder and in general the "fair user" is doing the using for personal reasons.

Maybe you can dance around and try to claim that actually the use itself didn't affect the film's box office take but the reviews did (though in many cases of parodies the fair use and the criticism are intimately connected). It's certainly not for personal reasons. And, realistically, in a lot of cases (more commonly with more Wowza! reviewers) the "clip from an upcoming movie" is itself the product being sold, and people don't watch for the value-added commentary.

2. The primary way that commercial uses change court interpretations of fair use is that courts tend to put a higher burden of proof on the defendent to prove that their commercial use is fair (typically, if the user is non-commercial than they place a higher onus on the plaintiff to demonstrate that the use is unfair).

But commerciality--even an impact on the marketability of the original--does not prima facie demonstrate that a use is unfair. Indeed, in that Slashdot baby "Sony Corp. of America v. Universal City Studios, Inc" a use that clearly affects the marketability of the copyrighted product was upheld (after all, if you cannot tape a movie when it airs on the networks and time-shift your viewing, you're more likely to buy the official movie release).

The basic balancing test required to ensure that use is fair use says otherwise to what you state.
I encourage you to read the following: Definition of Fair Use [auburn.edu] (pay special attention to points 3 and 4 there). I also encourage you to find out what a "balancing test" means, legally, in case that term is new to you.

I'd recommend the same, since your first sentence here shows a startling lack of understanding of the concept. In particular, the Court has been pretty one-sided about this portion of the balancing act: if you can't demonstrate that your market was affected then it's tough to get a court to agree that a use is unfair, but market affect on its own is proof of little.

IOW, this clause is generally invoked to protect fair use, but violating it alone doesn't go far toward showing that a use is not, on balance, fair.

If it's a litmus test at all (which it really isn't, since "no commercial impact on the copyright holder" is normally a defense but not always), it's a litmus test in the opposite direction of what you're claiming.

NOARCHIVE

[DarkClown]

wonder if the guy bothered with a robots.txt or used the meta NOARCHIVE - not that actually preventing that was his intent.
i don't mind the google cache at all, what drives me up a wall is what jeeves and other engines do with external pages by sticking them in a frame. so, if you put code in the page to force it out of frames, then engines like yahoo penalize (or drop from the index entirely) for messing with the user navigation.....

Slashdot Cache Ruled Fair Use!!

[LesPaul75]

Ok, no more excuses Slashdot... It's time to start caching pages and preventing the Slashdot effect.

Re:not anymore than any browser

[squoozer]

True, but there is a subtle difference between the Google cache and your local cache - Google are making money from displaying other peoples work. Ok maybe it's not 100% direct, they don't have adverts on the cached page (yet) but it is an additional service they are providing that draws people. More people == more money ergo you can conclude that they are profiting by displaying our work.

To perhaps make it clearer: Many of the articles I write are one page long and my time is funded by the adverts on my site. The cached google page shows the whole of an article but far fewer adverts than the real page therefore I am losing out on revenue because of Googles cache. I think it is difficult to argue that Googles use is fair as they are displaying the whole article. Fair use was supposed to protect people that wanted a snippet or two for review purposes and that sort of thing.

Imagine if you reprinted a chapter of a book or the leading article of a newspaper. You would be sued before you knew what was happening and yet Google seem to get away with copying and republishing whole websites.

Web caches too!

[slashdotmsiriv]

What about web caches? They violate copyright law too! My firefox does it too. Should I use 0 Mbytes of disk space for browser caching?

Where's the engine for the robots.txt excluded?

[Kazoo the Clown]

By now someone must have created a search engine that only indexes sites whose robots.txt tells them not to index. I'm surprised I haven't heard of a particular one. Bet it would raise a few hackles though...