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copyright infringement when a Google user clicked on a “Cached” link to the Web pages containing his works and
wnloaded a copy of those pages from Google‟s computers.
Although in technical terms Google makes copies of copyright works when serving the archived pages, the Court
found comprehensively in Google‟s favour. It found that by making his works freely availa
ble on the web, withoutusing any txt file or metatags to prevent or restrict copying, he had impliedly licensed Google to index and copy
his works and to make them accessible via the „Cached‟ link. Also, given his conduct, he was prevented alleging
gement (the „sting element‟). Finally, Google could rely on a „fair use‟ defence. It‟s worth looking in moredetail about how the US Court applied the „fair use‟ defence in this case.
–how the Court applies this to “Cached” pages
In the US, the
„fair use‟ defence applies to all uses of copyright work made without the owner‟s consent whichqualify as „fair use‟. By contrast, in Europe we have developed „case by case‟ exceptions e.g. for research and
private study and library use.There are four f
actors which a US Court analyses to see if „fair use‟ applies: (1) the purpose and character of the
use, including whether it is commercial or for non-profit educational purposes; (2) the nature of the copyrightedwork; (3) the amount and substantiality of the portion used and (4) the effect of the use on the potential marketfor or value of the copyrighted work.
The US Supreme Court‟s analysis of „fair use‟ seems to largely turn on the notion of “transformative use”. In
other words, if the new work adds something new, with a further purpose or different character, it is
“transformative”. As such, it is furthering the goal of copyright to promote science and arts and is therefore morelikely to be “fair use” of the work.
For a variety of reasons, the Court
in Field v. Google found that “Cached” links were “transformative”. First,Google‟s cache functionality enables users to access content when the original page is inaccessible. Second, “Cached” links allow Internet users to detect changes that have been ma
de to a particular Web page over time.
Third, offering “Cached” links allows users to understand why a page was responsive to their original query.Fourth, Google uses several design features to make clear that it does not intend a “Cached” link of a page
tosubstitute for a visit to the original page.
Google‟s „Image Search‟ and Google‟s commercial benefit –
Perfect 10 (“P10”) publishes the adult magazine “PERFECT 10” and operates a subscription website, “perfect10.com”, both of which featu
quality, nude photographs of “natural” models. P10 generates all its
revenue from the sale of copyright works. Aside from one licensing agreement, P10 had not licensed any otherwebsites to copy, display or distribute any of its copyrighted images.In Perfect 10 v. Google Inc.,
P10 sued Google for copyright infringement. The Court summarised the question as
follows: “does a search engine infringe copyrighted images when it displays them on an “image search” functionin the form of “thumbnails” but
not infringe when, through in-line linking, it displays copyright images served by
another website?” Google‟s „Image Search‟ cache contains reduced size images or „thumbnails‟ of P10 images retrieved from thirdparty websites by “Googlebot” which are ser
ved to the user in response to a search. When the user clicks on a
A decision of the Central District of California, US District Court Case No. CV 04-9484 AHM (SHx)