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Google, Copyright and the Law :: Laurence Kaye

Google, Copyright and the Law :: Laurence Kaye

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Published by: adorkable81 on Jan 27, 2009
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06/14/2009

 
 
 „Google, search engines and copyright –
 
where are we?‟ The story‟s developing
Charles Clarke, a former copyright advisor to the UK publishing industry, once famously observed that „theanswer to the machine is the machine‟. Well, the Courts seem to
think so. They are telling online content owners
 –
 
you‟re on notice. If you don‟t make use of technical protection –
robots.txt files, metatags etc. - to control the
activities of search engines‟ web crawlers, you make life more difficult if you want to ar
gue copyrightinfringement by search engines
 –
see Field v. Google Inc below.But there is another trend emerging from the Courts which is more worrying for search engines. It runs along thefollowing lines. The search engine business is built on the back 
of other people‟s content. They are copying and
publicly displaying content. That brings them into the copyright sphere. Where that content is valuable, either
directly or where it generates ad revenue, they can‟t automatically rely on „fair use‟ argument
s. Another danger area for search engines is mobile content When Google changes websites to make them fit onmobile phones it strips out the advertising(http://www.moconews.net/?p=5412).
 As Google‟s own blog explains, “Google automatically translates the page's layout to make it as easy as possible
to read on a small screen. We also break long-winded web pages into smaller pieces and do our best to show
you the portion that's relevant to your query, first.” 
 http://googleblog.blogspot.com/2006/02/query-less-ordinary.html.Google is manipulating third party copyright material. So what is Google doing here? It ismanipulating valua
ble third party copyright material in a way which is arguably outside „fair use‟ as well.
What all this means is that search engines are going to have to take their place in the content supply chain and
do content deals like everyone else. This isn‟t alwa
ys the case. It will depend on the nature of the content. For
example, use of commercially valuable images is typically a higher „copyright risk‟. But where there is commercialuse (e.g. through the „AdSense‟ programme), Google and its search engines are g
oing to find it increasingly hard
to run the „fair use‟ defence.
For example, in a recent US case
 –
Perfect 10 v. Google
 –
the Court decided that Google infringed copyrightwhen it created and displayed thumbnail images from its cache and that in that ins
tance it wasn‟t protected by „fair use‟. The Court also decided that Google wasn‟t liable for linking to third party websites which hosted and
served infringing full size images.Before launching further into the subject, let me add a few caveats:
This article focuses on two recent decisions of US Courts. I write as a UK and not as US copyright lawyer sobe warned!
This article focuses on the activities of Google and other search engines as such. In other words on the issuesraised by the automated
activities of search engines. So Google‟s Print Project –
its Print Publisher Programand Print Library Project
 –
raise different issues because they both involve full text scanning.
It is still early days in building legal precedent. Both of the cases dealt with below are still at a preliminarystage and have not gone to full trial.
 A two minute guide to Google
1 
Before looking at some recent cases, it is worth briefly summarising the way Google, like other search engines,
1
 
Source: the j
 
udgment in Field v. Google Inc, see below
 
 
 Page 213 March 2006works. Its automated program
 –
 
 “Googlebot” –
continuously crawls across the Internet, to locate and analyseWeb pages, and to catalogue those pages into its searchable Web index. As part of that process, it makes andanalyses a copy of each page that it finds, and stores the HTML code in a temporary repository called a cache.Once Google indexes and stores a Web page in the cache, it can include that page, as appropriate, in the searchresults it displays to users in response to their queries.When Google displays Web pages in its search results, the first item appearing in each result is the title of a Webpage. If the user clicks on the title, it takes the user to the online location of that page. The title is followed by a
short “snippet” from the Web page in smaller font. Followi
ng the snippet, Google typically provides the full URL
for the page. Then, in smaller font, Google often displays another link called “Cached.” When clicked, the “Cached” link directs an Internet user to the archival copy of a Web page stored in Google‟ssystem cache, rather than to the original Web site for that page. By clicking on the on the “Cached” link for apage, a user can view the “snapshot” of that page, as it appeared the last time that the site was visited an
analysed by the Googlebot.The pag
e a user retrieves from Google after clicking on a “Cached” link contains a conspicuous disclaimer at thetop explaining that it is only a snapshot of the page from Google‟s cache, not the original page, and that the
page from the cache may not be current.
The „inverted copyright‟ defence
The Courts are being influenced by that fact that website owners can take technical measures to prevent asearch engine from indexing the whole or individual pages of their sites and can also stop them from showing
 “cached” links to their sites.
2 
These include the use of a robots.txt file or the insertion of appropriate metatags. If 
the website owner fails to do so, so the argument runs, then the search can raise a defence of „implied licence‟ to
index, store and copy. Al
so, recent US decisions show that their activities may be covered by „fair use‟.This means that copyright is being inverted. Instead of the „user‟ being unable to copy the work without theowner‟s express permission, the onus is on the rights owner to ta
ke active steps to prevent copying. This line of argument appears in
Field v. Google Inc
3
, a decision of the US District Court (District of Nevada) in January2006.
 
It would be premature to conclude that failure to use technical measures mean that a search engine will never
infringe copyright. The developing cases are taking a „granular‟ approach, examining different aspects of a searchengine‟s functionality, applying these tests and drawing a variety of conclusions.
Search engines and “Caching” links –
a
 „legal sting‟ that didn‟t work 
Field v. Google, Inc was a „legal sting‟. It was also a case where „fair use‟ figured prominently as regards „cached‟ 
links.Field, a lawyer, created 51 copyright works. He then created a website at www.blakeswritings.com and published
his works on pages where they were freely accessible. He knew that Google automatically provided “cached” 
links for pages that are included in its index and search result. In fact, he created a robots.txt file for his websiteand set the permissions to allow all robots to visit and index all of the pages on the site. He sued Google for
2
 
Google provides instructions to website owners on how to communicate their preferences to Google athttp://www.google.com/remove.html 
3
 
 A decision of the US District Court (District of Nevada) in January 2006, Case No. CV-S-04-0413-RCJ-LRJ Page 3 13 March2006
 
 
 Page 313 March 2006
copyright infringement when a Google user clicked on a “Cached” link to the Web pages containing his works and
do
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
infrin
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.
Fair use
 –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 –
another story
Perfect 10 (“P10”) publishes the adult magazine “PERFECT 10” and operates a subscription website, “perfect10.com”, both of which featu
re high-
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.,
4 
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
4
 
 A decision of the Central District of California, US District Court Case No. CV 04-9484 AHM (SHx)

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