Google Cache Does Not Directly Infringe Site Author’s Copyright

The United States District Court for the District of Nevada granted Defendant Google, Inc.’s motions for summary judgment, finding Defendant did not infringe Plaintiff web site author’s copyright by maintaining a copy of Plaintiff’s works in its online cache and allowing search engine users access to the cached copy. Defendant uses an automated program (“Googlebot”) to crawl the Internet, analyzing and cataloging web pages. The Googlebot also makes a copy of the pages it finds and stores them in a temporary cache on Defendant’s servers. Web site owners can include a “meta-tag” in the computer code for their web pages to tell Defendant not to cache their pages (“no-archive meta-tag”). These meta-tags are an industry standard. When a user’s search results are displayed, Defendant shows a large link to relevant web pages and a smaller link to its cached copy of each page (unless the web page owner opted out through the use of meta-tags). The cached copy is useful when the web page is inaccessible, the web page has changed, or when users are having trouble finding their search terms (which Defendant highlights in the cached copy). The cached copy has a disclaimer at the top of the page stating it is Defendant’s copy of the page and providing two links to the actual website.

The Court found that Plaintiff knew that Defendant would archive a cached copy of his website if he did not include the no-archive meta-tag and decided to manufacture a copyright infringement claim. This involved authoring 51 works over three days, registering each for a separate copyright, and posting them on a new web site he created. He consciously chose not to use the no-archive meta-tag. The Googlebot visited Plaintiff’s webpage and created cached copies of the works. Individual(s) then viewed the cached copies of the work through Defendant’s website. When Defendant learned the complaint in this case had been filed, it promptly removed the cached links and wrote to Plaintiff explaining that Defendant did not want to display the cached copies of his work if he did not want them displayed.

Both Plaintiff and Defendant moved for summary judgment on the question of Defendant’s infringement, the validity of three defenses (Implied License, Estoppel, Fair Use), and whether Defendant was covered by the Digital Millennium Copyright Act (DMCA) safe harbor for systems caches for online service providers. The Court granted Defendant’s motions and denied Plaintiff’s, finding Defendant did not directly infringe, that all three defenses were valid, and that Defendant could qualify for safe harbor.

Defendant Did Not Directly Infringe
The parties agreed that Plaintiff owns the copyrighted works at issue here, and that Defendant did not infringe the copyrights when the Googlebot initially copied the pages. At issue was whether Defendant directly infringed Plaintiff’s copyright by providing the cached copies to search engine users. (Plaintiff did not allege indirect or contributory infringement.) Plaintiff was legally required to show that Defendant committed a volitional act to support a claim of direct infringement under the Copyright Act. The Court found that since Defendant’s computers respond automatically to a user’s request for a cached copy, the conduct is not volitional. Therefore, the Court granted Defendant’s motion for summary judgment that it did not directly infringe Plaintiff’s copyright.

Defendant’s Defenses of Implied License, Estoppel, and Fair Use Are Valid
The Court next held that even if Defendant had directly infringed Plaintiff’s copyright, Defendant had established several defenses to Plaintiff’s infringement claim. First, the Court held that Plaintiff had granted Defendant an implied license as a matter of law by making a conscious decision to allow Defendant to make and use the cached copy. Defendant knew the use of the no-archive meta-tag would prevent Defendant from making a copy, but chose not to include the tag.

Next, the Court considered the defense of estoppel. Estoppel has four elements: the Plaintiff knew of the infringing conduct, Plaintiff intended Defendant to rely on his conduct, Defendant was ignorant of the true facts, and Defendant detrimentally relied on Plaintiff’s conduct. The court found all four elements were met. Plaintiff admitted he knew that without the no-archive meta-tag, Defendant would provide a copy of his work to users through its cache. Plaintiff chose not to include the no-archive meta-tag knowing that Defendant would rely on it in building its cache. Defendant was unaware that Plaintiff did not want his work cached. Without Defendant’s reliance, there would have been no lawsuit. Therefore, the Court held that Plaintiff was estopped from his claims as a matter of law.

Finally, the Court upheld the defense of “fair use”. Under the Copyright Act, courts must consider at least four factors when analyzing whether a use qualifies as fair use. These factors are the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect of use on the market value of the work. The Court found the first and fourth factors most important. In this case, the Court held that the cached links are highly transformative since they provide highlighted search terms and potentially give users the ability to compare the current version of a site with the older version. Thus, the first factor weighed heavily in favor of fair use. The Court also found that though Plaintiff’s works were creative, he made them widely available for free, so the nature of the copyrighted work only slightly favored the Plaintiff. Though the Defendant used the entirety of Plaintiff’s work, this was only as much of the copyrighted works as necessary to serve its transformative purposes, so the amount of use was a neutral factor. The Court found no evidence of impact on a potential market for Plaintiff’s copyrighted works since he was providing the content for free on his web page, so the Court found the fourth factor strongly supported fair use. The Court also considered a fifth factor—Defendant’s good faith throughout the process as compared to Plaintiff’s bad faith in manufacturing the lawsuit. With the first and fourth factors weighing strongly in favor of fair use, and the fifth factor supporting this decision, the Court found Defendant’s conduct to be fair use as a matter of law.

Defendant is Covered by DMCA Safe Harbor
Though Plaintiff asked for summary judgment on the grounds that Defendant was not covered by four DMCA safe harbors for online service providers, the Court found that Plaintiff only provided enough detail in his motion to lead it to consider the safe harbor of Section 512(b) which covers system caches. Plaintiff claimed that Defendant did not meet the safe harbor requirements because it did not make “intermediate and temporary storage” of Plaintiff’s works, that the material was not transmitted from Plaintiff to another person at that person’s request, and that Defendant’s cache did not fully meet the requirement of an automated technical process to make the material on Plaintiff’s site available to those who request information from the site. The Court denied Plaintiff’s claims and granted defendant’s oral cross-motion for summary judgment on this ground, finding that Defendant’s use of the cache was intermediate and temporary, that the transfer from the web site to the Googlebot was a transmission from the author to another person at that person’s request, and that Defendant’s cache was accessible through an automated technical process that allowed users who unsuccessfully requested materials from the original site to still view a copy of the materials.

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