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.

The judge then got down from his bench

[Jim in Buffalo]

The judge then left the bench, walked over, and whacked the plaintiff and his council on the head with a salami.

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.

[schon]

"Fair Use" is broadly supposed to have minimal to nil financial effects on the copyrightholder

Before we address this (false) assumption, here's what's happening:

Copyright holder makes a web page available *FOR FREE* to the general public. Google caches it. Please explain how Google's cache financially hurts the copyright holder. Providing something *FOR FREE* that is available *FOR FREE* would seem to have a "nil financial effect on the copyright holders", no?

Google's cache is basically a large-scale financial transfer from the copyrightholders

Sorry, WHAT ?!!??!

Financial == monetary matters. I haven't checked in the past 5 minutes, but prior to that, someone visting your (free, publically accessible) website doesn't move money from your bank account to theirs.

Re:I don't like this ruling.

[pthisis]

"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.

This is not true. Ebert & Roeper can show a movie clip, do some scathing commentary, decrease the film's box office take, and make money in the process, and that's clearly fair use. Protecting negative criticism is one of the core philosophical reasons behind fair use (originally, anyway) and it clearly has the potential to have devastating financial effects on the copyright holder.

Re:I don't like this ruling.

[dasil003]

Allow me to quote your original message:

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.

While I don't think it's an open and closed case, you won't convince anyone by spouting such hyperbole.

First of all, you're ignoring the fact that the main link goes to the actual website, and the only way to get to the cache is through a smaller link labeled "cache", which is unlikely to be clicked by someone who doesn't already know what it means. Furthermore, once they do click they get a very clear and prominent message in a frame stating that it is in fact a cache, and even explains what the cache is and how it works. So to say that it is a 'large-scale financial transfer' is just silly. At worst it's an extremely small-scale 'financial transfer', and that's a very dubious point to begin with.

So then in your response you say:

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.

The same could be said about search in general. They are profiting off of other people's content, because without it there'd be nothing to search. I'm sorry, but there's no evidence that the cache hurts websites financially. And there is certainly plenty of anecdotal evidence where it helps (eg. site goes down, customers go to cache to get phone # or contact email). Note that I'm not using that as support of Google's right to cache, merely as a counterargument against your baseless assertions.

You are basically saying that GOOGLE has the right to display YOUR content as GOOGLE sees fit.

Again with the hyberbole. No one believe Google has the right to display your content any way they want. What some people are arguing is that Google has the right to display your content as they do which is quite reasonable, and not deceptive in the least.

In the google cache situation, the owner effectively loses that right.

No, the page will disappear from Google once it is permanently down, it just takes some time. This may be a valid point about the internet archive, but then again information that finds its way on to the internet anywhere is likely to stick around for a long time.

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?

Um, because books cost money?

Comment removed

[account_deleted]

Comment removed based on user account deletion

"fair use"? What's dat?!

[Thud457]

I thought we sold "fair use" a while ago for three magic beans and some DVDs.

Re:not anymore than any browser

[metternich]

Browsers don't make their caches publicly availible. You're comparing apples and oranges.

The "Implied License" is the most interesting

[cfulmer]

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.

Very specific case, though

[Anonymous Brave Guy]

This is good news for the Wayback Machine at archive.org.

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:

Because Google serves different and socially important purposes in offering access to copyrighted works through "Cached" links and does not merely supersede the objectives of the original creations, the Court concludes that Google's alleged copying and distribution of Field's Web pages containing copyrighted works was transformative.

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.