The EFF has a press release on Field v. Google, in which the United States District Court for the District of Nevada rejected Field’s claims for copyright infringement arising from Google’s storing of his copyright works in its cache.

Google’s cache is an important part of the way it operates its search engine: in a nutshell, Google maintains multiple copies of the world wide web on its servers. This cache is used for multiple purposes during searches, including to allow viewing of achival versions of pages and easy identification of search terms on the retrieved page. Google compiles this cache by having ‘spider’ crawl the net, copying pages to the cache and jumping from link to link to find new pages.

It is possible to exclude the spiders altogether from a site using a ‘robots.txt’ file, and also to tell Google (and other search engines) not to store cached copies of pages by including a ‘NOARCHIVE’ keyword in the webpage’s source code. Google also provided a means for website operators to have pages removed from its cache.

Field, an author and an attorney, posted some original works on his website. According to the judgment, Field was aware of how Google’s search engine worked, and was aware he could prevent it making cached copies of his work. Nevertheless, “Field decided to manufacture a claim for copyright infringement against Google in the hopes of making money from Google’s standard practice.”

Field set up a robots.txt file that explicitly told search engine spiders that it was okay to crawl his site, and did not set any noarchive keywords. He created 51 works in a three day period in January 2004, registered copyright in them, then made them available on his website. Google’s spider (the GoogleBot) crawled his site, and made copies of each work for the cache. Google’s records show that every one of those works was subsequently accessed from its cache.

Field then filed his complaint, at which point Google informed him that it was happy to remove his pages from the cache. Apparently, this led nowhere, as both sides moved for summary judgment.

Google was entirely successful. The court accepted that simply making pages available in a cache was not direct copyright infringement. (Interestingly, Field only argued that infringement occurred when a user clicked on the link in the cache and downloaded a copy of the page; he did not argue that Google’s copying of the page itself was infringement — which would seem the stronger point.) The Court concluded:

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 request does not constitute direct infringement

The Court also held that, even if Field had established any infringement, Google would succeed on a number of defences. First, that Google had an implied licence to create the cache:

Field concedes he was aware of these industry standard mechanisms, and knew that the presence of a “no archive” meta-tag on the pages of his Web site would have informed Google not to display “Cached” links to his pages. Despite this knowledge, Field chose not to include the no-archive meta-tag on the pages of his site. He did so, knowing that Google would interpret the absence of the meta-tag as permission to allow access to the pages via “Cached” links. Thus, with knowledge of how Google would use the copyrighted works he placed on those pages, and with knowledge that he could prevent such use, Field instead made a conscious decision to permit it. His conduct is reasonably interpreted as the grant of a license to Google for that use.

Second, that Field was estopped from suing, because “he has aided the defendant in infringing or otherwise induced it to infringe or has committed covert acts such as holding out … by silence or inaction.” In effect, by knowing how Google made the copies, and then standing by and watching them do it, acting to its detriment in reliance on his silence, without saying or doing anything, he could no longer complain about the copying; “[h]ad Field communicated his preferences to Google, the parties would have avoided the present lawsuit entirely.”

Thirdly, Google’s creation and maintenance of its cache was a fair use. The Court held that Google’s cache “added something new” to the original works, allowing users to find material that is currently inaccessible, to view archived or previous versions of a page, and to show users why their search brought up any particular page. Nor did the cache attempt to replace the original page, which was prominently linked in the search results. Google also made it easy for website owners to prevent caching and removed any pages already cached; “The fact that the owners of billions of Web pages choose to permit these links to remain is further evidence that they do not view Google’s cache as a substitute for their own pages.”

Neither Google’s for-profit status nor its copying of the whole of webpages detracted from the transformative use of the web pages. Particularly because it did not profit from the caching itself, nor offer advertisements or other commercial inducements from the cached version of the page, and because the value added to society by the cache could not be achieved by copying only parts of web pages.

There was also no market impact on Field’s works, which he made accessible for free. He offered no evidence of a market for them, or injury to his ability to make a profit from them. Rather:

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.

Finally, the court held that Google was entitled to the “safe habour” provision of the DMCA, which provides: “[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”

It is hard to see that any part of this decision would likely be set aside on appeal. The exposition of the defences is clear, orthodox and correct. The finding of no direct infringement is limited to the case that Field brought (ie the copying by a user from the cache to his own computer). It is hard to say whether the copying that Field did not challenge (ie the copying by Google from a web page to its cache) would constitute direct infringement, but it probably would–however, it would also probably be subject to the same defences as in this case, which would likely be made out.

Overall, this is an important precedent, and one that will probably be followed in other jurisdictions.