Google cache cleared of copyright breach

Posted: August 3, 2008 in 2006, Articles
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Google Free to Cache: Court

Search giants digital library project gets legal boost after company wins a different case over keeping copies of web sites.
January 26, 2006

A Nevada district court has ruled that Google can keep versions of the web pages it indexes, providing fodder for the search giants defense against critics of its plan to digitize the worlds books.

The case arose after Google was sued during 2004 by a lawyer and amateur poet who posted his writing online to encourage Google to include copies of it in search results, something he claimed was illegal.

Instead, the court disagreed, saying last week Google can store and allow access to temporary copies of the pages called caches as they allow users to find information that is otherwise inaccessible.

Because Google makes methods for avoiding and removing caches readily available, the burden is on Internet publishers to utilize them, said the ruling. Some news organizations, for example, cut off cached access to older content that is no longer available for free.

Google said it was pleased with the courts decision. As we expected, the court ruled in Googles favor with regard to the cache feature of Google web search, said Michael Kwun, Google litigation counsel, in a statement.

The case also pleased legal watchers looking for court precedents for archiving online content.

Attorney William Patry called the ruling very important, because of its approach to fair use, which allows for something to be borrowed if it is used in a new way. The Nevada ruling followed an earlier case, Kelly v. Arriba Soft Corporation, which said search engines serve a distinct purpose because they improve access to information on the Internet.

Mr. Patry, who is a partner at Thelen Reid & Priest in New York City, was also a big fan of the district courts take on implied licensethat is, assuming that content posted to the Internet is fair game for Google unless its told otherwise.

For search engines to be effective, they have to search everything, he said Thursday. Its an enormous amount; you cant do it manually.

Fair Use for Books?

The caching case came to light after the San Francisco-based Electronic Frontier Foundation made note of it on Wednesday.

EFF suggested the court decision had broad significance. The ruling should help Google in defending against the lawsuit brought by book publishers over its Google Library Project, as well as assisting organizations like the Internet Archive that rely on caching, wrote EFFs senior intellectual property attorney Fred von Lohmann.

Mountain View, California-based Google has embarked upon controversial plans to digitize the worlds libraries. The company had previously halted its Google Print (now called Google Book Search) project last year after criticism and a copyright infringement lawsuit by members of the American Association of Publishers (AAP) and the Authors Guild (see Google to Library: Shush! and Publishers Sue Google). The lawsuits are ongoing, while Googles project remains live.

Battle Fodder

Mr. Patry agreed that the fair use portion of the Nevada ruling gives Google fodder for its battles against the American Association of Publishers and other critics.

But the AAP disagreed. I dont think the courts analysis of caching activities by Google really bears any relationship to the issues in the library case, said Allan Adler, AAPs vice president for legal and government affairs.

Mr. Adler contended web sites and books are birds of a different feather. The only thing being cached is from web sites, which are online, have no existence in analog, and are created specifically for attracting traffic, he said.

Google did not comment on the implications of the new ruling, but materials on the company web site imply the Nevada ruling falls in line with its digital library contentions.

A defense of the book digitization project linked to by Google offered both fair use and implied license as justification for the projects legality.

However, attorney Jonathan Band noted in the undated document, This implied license theory has not yet been tested in court. The Nevada ruling, however, could now serve as a precedent.

The Ironic Twist

Interestingly, the plaintiff in the Nevada case, Blake Field, had created content for Google to cache expressly for the purpose of suing Google, according to court documents. He wrote a series of poems on everyday objects and happenings such as ink cartridges and oil changes, copyrighted them during 2004, and posted them to blakeswritings.com. Though Mr. Field knew of the methods to block Google from caching his site, he did not employ them.

Field decided to manufacture a claim for copyright infringement against Google in the hopes of making money from Googles standard practice, the ruling said.

Rather than setting a precedent against caching sites, Mr. Fields case may provide a stronger argument for caching books.

Mr. Field did not respond to a request for comment.

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