Field v. Google, Inc., 412 F.Supp.2d 1106 (D. Nev. 2006) (full-text).
Nevada lawyer Blake A. Field authored and registered for copyright several works that he posted to his personal website, www.blakeswritings.com, knowing and intending that his works would be indexed and cached by Google's automated Googlebot program. Field also knew that he could prevent Google's program from caching his site, simply by including a "no-index" metatag on his web pages; but Field chose not to do that. Field also knew that Google has a process that allows website owners to have their pages removed from Google's cache; but Field didn’t do that either. Instead, Field included code on his website that allowed Google to index and cache it; and then he sued Google for infringement.
Trial Court Proceedings
Field sought statutory damages and injunctive relief against Google for permitting Internet users to access copies of images temporarily stored on a cache. In the course of granting summary judgment for Google, the court explained the caching process:
- There are billions of Web pages accessible on the Internet. It would be impossible for Google to locate and index or catalog them manually. Accordingly, Google, like other search engines, uses an automated program (called the "Googlebot") to continuously crawl across the Internet, to locate and analyze available Web pages, and to catalog those Web pages into Google's searchable Web index.
- As part of this process, Google makes and analyzes a copy of each Web page that it finds, and stores the HTML code from those pages in a temporary repository called a cache. Once Google indexes and stores a Web page in the cache, it can include that page, as appropriate, in the search results it displays to users in response to their queries.
- When Google displays Web pages in its search results, the first item appearing in each result is the title of a Web page which, if clicked by the user, will take the user to the online location of that page. The title is followed by a short snippet from the Web page in smaller font. Following the snippet, Google typically provides the full URL for the page. Then, in the same smaller font, Google often displays another link labeled "Cached."
- When clicked, the "Cached" link directs an Internet user to the archival copy of a Web page stored in Google's system cache, rather than to the original Web site for that page. By clicking on the "Cached" link for a page, a user can view the "snapshot" of that page, as it appeared the last time the site was visited and analyzed by the Googlebot.
The court emphasized that there are numerous, industry-wide mechanisms, such as "metatags," for website owners to use to communicate with Internet search engines. Owners can instruct crawlers, or robots, not to analyze or display a site in its web index. Owners posting on the Internet can use a Google-specific "no-archive" metatag to instruct the search engine not to provide cached links to a website. In view of these well-established means for communicating with Internet search engines, the court concluded that the plaintiff "decided to manufacture a claim for copyright infringement against Google in the hopes of making money from Google's standard practice."
Despite its acknowledgment of the plaintiff’s rather dubious motives, the court nevertheless discussed the merits of the copyright infringement claims. Specifically, the plaintiff did not claim that Google committed infringement when the Googlebot made initial copies of Field’s copyrighted Web pages and stored them in its cache. Rather, the alleged infringing activity occurred when a Google user clicked on a cached link to the Web page and downloaded a copy of those pages from Google’s computers.
Assuming, for the purposes of summary judgment, that Google's display of cached links to Field's work did constitute direct copyright infringement, the court considered four defenses raised by Google, and found in its favor on all counts.
First, the court found that the plaintiff had granted Google an implied, nonexclusive license to display the work because "[c]onsent to use the copyrighted work need not be manifested verbally and may be inferred based on silence where the copyright holder knows of the use and encourages it." Field's failure to use metatags to instruct the search engine not to cache could reasonably be interpreted as a grant of a license for that use.
The court invoked the facts supporting its finding of an implied license to support the equitable argument that Field was precluded from asserting a copyright infringement claim. The court reiterated that Field could have prevented the caching, did not do so, and allowed Google to detrimentally rely on the absence of metatags. Had Google known the defendant’s objection to displaying cached versions of its website, it would not have done so.
- Purpose and Character of Use. The search engine’s use of the protected material is transformative. Rather than serving an artistic function, its display of the images served an archival function, allowing users to access content when the original page is inaccessible.
- Nature of the Copyrighted Works. Even assuming the copyrighted images are creative, Field published his works on the Internet, making them available to world for free; he added code to his site to ensure that all search engines would include his website in their search listings.
- Amount and Substantiality of the Use. The court found that Google’s display of entire Web pages in its cached links serves multiple transformative and socially valuable purposes. It cited the U.S. Supreme Court’s decision in Sony v. Universal City Studios and Kelly v. Arriba Soft Corp. as examples where copying of an entire work is a fair use.
- Effect of the Use on the Potential Market for or Value of the Copyrighted Work. Although the plaintiff distributed his images on the Internet for free, he argued that Google’s activity undercut licensing fees that he could potentially develop by selling access to cached links to his website. The court found that there was no evidence of an existing or developing market for licensing search engines the right to allow access to Web page]s through cached links.
- Good Faith. In addition to the statutory criteria of 17 U.S.C. §107, the court considered equitable factors and found the Google operates in good faith because it honors industry-wide protocols to refrain from caching where so instructed. Conversely, the plaintiff deliberately ignored the protocols available to him in order to establish a claim for copyright infringement.
Digital Millennium Copyright Act (DMCA)
Finally, the court held that Google is protected by the safe harbor provisions of the DMCA, which states that “[a] service provider shall not be liable for monetary relief . . . for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider.”