February 17, 2006

Catching Up (*sigh*) [1:08 pm]

(As suggested by the paucity of posts, it’s been a VERY busy start of the year here at TPP. Frankly, I’m a little worried about how far behind I am, but all I can do is try to catch up as best I can)

So, I have enjoyed reading this opinion (via Lessig Blog): Field v. Google, from the US District Court of Nevada. Basically, a copyright infringement suit against Google and its cache. Ultimately, Field loses, but there are some entertaining paragraphs.

According to Field, Google itself is creating and distributing copies of his works. But when a user requests a Web page contained in the Google cache by clicking on a “Cached” link, it is the user, not Google, who creates and downloads a copy of the cached Web page. Google is passive in this process. Google’s computers respond automatically to the user’s request. Without the user’s request, the copy would not be created and sent to the user, and the alleged infringement at issue in this case would not occur. The automated, non-volitional conduct by Google in response to a user’s does not constitute direct infringement under the Copyright Act. [p. 11]

[...] Google’s good faith is manifest with respect to Field’s works in particular. Field did not include any information on the pages of his site to instruct Google not to provide “Cached” links to those pages. Google only learned that Field objected to the “Cached” links by virtue of discovering Field’s Complaint in this litigation. At the time, Field had not even served the Complaint. Nevertheless, without being asked, Google promptly removed the “Cached” links to the pages of Field’s site. See Macgillivray Decl. ¶2.

Field’s own conduct stands in marked contrast to Google’s good faith. Field took a variety of affirmative steps to get his works included in Google’s search results, where he knew they would be displayed with “Cached” links to Google’s archival copy and he deliberately ignored the protocols that would have instructed Google not to present “Cached” links.

[...] In summary, the first fair use factor weighs heavily in Google’s favor because its “Cached” links are highly transformative. The second fair use factor weighs only slightly against fair use because Field made his works available in their entirety for free to the widest possible audience. The third fair use factor is neutral, as Google used no more of the copyrighted works than was necessary to serve its transformative purposes. The fourth fair use factor cuts strongly in favor of fair use in the absence of any evidence of an impact on a potential market for Field’s copyrighted works. A fifth factor, a comparison of the equities, likewise favors fair use. A balance of all of these factors demonstrates that if Google copies or distributes Field’s copyrighted works by allowing access to them through “Cached” links, Google’s conduct is fair use as a matter of law. [p. 21]

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