Slashdot Mirror
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."
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?
Uncensored Google results requested and delivered by email
Most browers have a built in cache. They don't violate copyright law
do they?
This is good news for the Wayback Machine at archive.org. I think the case against google images, and especially google video is a little stronger, however.
Religion for nerds. Stuff that really matters
Google's cache is often times the only way to read an article posted on here. Also, its a good resource for people behind firewalls and can only pull up a cached version. It's a good win for Google.
http://religiousfreaks.com/Finally, a frivolous lawsuit that got its just desserts. We can only hope that will herald a new age, where the insanely stupid lawsuits are going to fianlly the death they so rightly deserve.
-
The judge then left the bench, walked over, and whacked the plaintiff and his council on the head with a salami.
This sig, aah-ah, is comin' like a ghost-sig...
avoid a lawsuit
He who knows best knows how little he knows. - Thomas Jefferson
So who has a link to the Google cache of the article?
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.
Comment removed based on user account deletion
That overwhelmingly loud noise everyone just heard was the sound of every Slashdot reader gasping at the fact that the DMCA just got used for something positive.
I thought we sold "fair use" a while ago for three magic beans and some DVDs.
the preceding comment is my own and in no way reflects the opinion of the Joint Chiefs of Staff
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.....
Forget the fair use analysis, the most important thing here is the success of the "Implied License" claim. Basically, it goes like this: You operate a website. The web was created specifically with the idea that "robots" would crawl across it, and there is a standard well-known way to prevent them from crawling your site. Even more specifically, there's another standard well-known way to keep search engines from cacheing your content. Being on the web but not using these techniques means that you give search engines permission to cache your content.
It's sort of like what happens when you leave a potful of candy at your front-door on Oct. 31st. In theory, you could claim that all those kids who come to your door and help themselves are stealing. But, because everybody knows how Halloween works, you've implicitly given permission for them to do it.
In this opinion, the Fair Use analysis was basically just used as a stopgap of "what little infringement that's left after you account for the implied license is a fair use." If the website had included a robots.txt file, the fair use case would have been much harder to make.
The Implied License is a stake in the ground for "This is the Internet. The rules are different here." IMO, that's a good thing -- there are a bunch of things that just couldn't happen if you had to get explicit permission from every content owner.
The Google cache is absolutely ridiculous. As an individual who has had quite a bit of experience on both sides of the white hat / black hat search engine industry, the cache is NOT a webmaster's friend.
1. The cache removes content control away from the author. For example, a site like EzineArticles.com prevents scraping by using an IP blocking method based on the speed at which pages are spidered by that IP. It is absurdly easy to circumvent this by simply spidering the Google cache of that article instead of spidering the site. Google's IP blocking is far less restrictive, and combined with the powerful search tool, it allows for easy, anonymous contextual scraping of sites whose Terms of Service explicitly refuse it.
2. The cache extends access to removed content, often for months if not years at a time. Google rarely replaces 404 pages (perhaps it is because of their wish to have the largest number of indexed pages). I have clients who have nearly 48,000 non existent pages still cached in google that have not been present in over 14 months. Despite using 404s, 301s, etc. these pages have not yet been removed. Furthermore, Google's often mishandling of robots.txt, nocache, and nofollow leaves webmasters dependent upon search traffic hesitant to force removal of these pages using the supposedly standardized methods of removal.
3. The cache allows Google to serve site content anonymously. Don't want the owner of a site to know you are looking at their goods (think of companies grepping for competitor IPs), just watch the cache instead.
The list goes on and on. But I think the point is this...
Why should a web author have to be technologically savvy to keep his or her content from being reproduced by a multi-billion dollar US company? Content control used to be as simple as "you write it, its yours". It got a little more complicated with time to the point at which it might be useful to use, perhaps, a Terms of Service. Even a novice could write "No duplication allowed without expressed consent". Now, a web author must know how to manipulate HTML meta tags and/or a robots.txt file.
Fair use is for users, for people, not multi-billion dollar companies.
Fight Link Spam with LinkSleeve.org
After reading the actual opinion that granted summary judgement, if this same logic is applied to the scanning and offering of search on "real world" materials, Google may be able to withstand lawsuits on the book scanning effort quite well. There are some differences that could create a different outcome, but this outcome was 100% favorable to Google and the idea of indexing and caching of materials to allow such search and reference was solidly defended by the judge.
Sig under construction since 1998.
Ok, no more excuses Slashdot... It's time to start caching pages and preventing the Slashdot effect.
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?
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...
Sorry, mumbles, but I don't buy it. My money's on the judge being right, and you being a loudmouth with too much time to post over and over, as you have in reply to everybody who argued with you.
And to try to actually contribute something to the debate: So you don't like the "fair use" part of the decision. Fair enough; though as I said, between you and the judge, my money's on the judge as the one who correctly groks what fair use is all about. But that aside, what about the other three points? Most interestingly, what about the "implied license" point?
And what about the judge's assessment that Field was "attempting to manufacture a suit against Google"? That is, this wasn't about actual injury to Field, it was about Field actively looking for a chance to sue someone? Does any of that matter to you?
I'm not sure about that. Although the result of this case seems fair and clearly indicated on several counts, there's a lot that might not apply to archives more generally, so I'm not sure how much of a precedent has been set.
In particular, the case was brought by someone who practically admitted trying to set Google up: he knew about mechanisms like META tags and robots.txt, knew that Google was caching his site, made no attempt to stop them, and indeed actually set up robots.txt explicitly to allow bots to crawl his site. This supports Google's first two defences here, having an implied licence and estoppel.
The most interesting discussion, IMHO, is on the fair use defence. The court considered in a lot of detail whether the use made by Google qualifies as fair use. On the first criteria (how the material is being used), it was found significant that the material was being used for different purposes in the cache than on the original site: the latter was presumed artistic, while the former allowed access to the material when the original site was down, historical comparisons of the site content, highlighting of search terms that made a page relevant to the user's search, etc. Hence the court concludes as follows:
The court also noted that Google made no attempt to profit from the display of the material, did not attach advertisements, made clear that the copy could be out of date, and linked clearly to the original source. (I wonder whether that non-profit, no-ads observation will come back to kick Google later...)
The other fair use discussion is less interesting, although the fact that the plaintiff had made his works available for free and not made any other attempt to profit from them was important, because this meant the market value of the original hadn't been damaged. One interesting tidbit is that apparently the SCOTUS has ruled that the fourth fair use factor (any damage to the market/value of the original work) can't be used to argue that the copyright holder could have licensed an otherwise fair use (such as the caching here) and thus the use can't be fair.
Some of the DMCA defence stuff could have quite significant implications. In particular, the fact that Google caches material only for a fairly short time (14-20 days is mentioned) is relevant, since a prior ruling about Usenet servers could be used.
In summary, Google would basically have won out on four different defences here, even without the fact that the original use might not qualify as direct copyright infringement (since the plaintiff went after the downloading done automatically in response to users; he didn't go after GoogleBot's initial copying process that caches the site on Google's system). It doesn't seem at all clear that a lot of the arguments would apply to other caching services, though: amongst other things, Google's cache in this case is temporary; known to the plaintiff, who had not tried to stop it and actually encouraged it; not for direct profit nor carrying any advertising; and clearly not damaging the market value of the original works.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
..since it means that I can now create a search engine that caches and displays Google's results.
I wonder how long it would take for Google to cry foul for doing exactly what they do ?