„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 „the answer 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 argue copyright infringement 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 the following 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‟ arguments. Another danger area for search engines is mobile content When Google changes websites to make them fit on mobile 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-lessordinary.html. Google is manipulating third party copyright material. So what is Google doing here? It is manipulating valuable 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 always 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 commercial use (e.g. through the „AdSense‟ programme), Google and its search engines are going 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 copyright when it created and displayed thumbnail images from its cache and that in that instance 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 so be warned! ⇒ This article focuses on the activities of Google and other search engines as such. In other words on the issues raised by the automated activities of search engines. So Google‟s Print Project – its Print Publisher Program and 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 preliminary stage and have not gone to full trial. A two minute guide to Google1 Before looking at some recent cases, it is worth briefly summarising the way Google, like other search engines,

Source: the judgment in Field v. Google Inc, see below

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works. Its automated program – “Googlebot” – continuously crawls across the Internet, to locate and analyse Web pages, and to catalogue those pages into its searchable Web index. As part of that process, it makes and analyses 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 search results 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 Web page. 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. Following 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‟s system cache, rather than to the original Web site for that page. By clicking on the on the “Cached” link for a page, 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 page a user retrieves from Google after clicking on a “Cached” link contains a conspicuous disclaimer at the top 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 a search 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. Also, 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 the owner‟s express permission, the onus is on the rights owner to take active steps to prevent copying. This line of argument appears in Field v. Google Inc3, a decision of the US District Court (District of Nevada) in January 2006. 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 search engine‟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 website and set the permissions to allow all robots to visit and index all of the pages on the site. He sued Google for

Google provides instructions to website owners on how to communicate their preferences to Google at http://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 March 2006

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copyright infringement when a Google user clicked on a “Cached” link to the Web pages containing his works and downloaded 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 available on the web, without using 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 infringement (the „sting element‟). Finally, Google could rely on a „fair use‟ defence. It‟s worth looking in more detail 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 which qualify 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 factors 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 copyrighted work; (3) the amount and substantiality of the portion used and (4) the effect of the use on the potential market for 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 more likely 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 made 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 to substitute 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 feature 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 other websites 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” function in 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 third party websites by “Googlebot” which are served 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)

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thumbnail, the user‟s browser opens or „frames‟ a „window‟ on the screen that displays the underlying Web page. In other words, when clicking on thumbnail returned as a result of a Google Image Search, the user‟s computer pulls up a page comprising two distinct frames, one hosted by Google and a second hosted by the underlying website that originally hosted the full-size image. The Court decided that by serving thumbnails of P10‟s copyright images from its own servers, Google infringed P10‟s copyright. However, it also concluded that Google‟s use of frames and in-line links does not constitute a “display” of the full-size images stored on and serviced by infringing third party sites. Having decided that copyright applied to serving up the thumbnails, the Court went on consider Google‟s „fair use‟ defence. The Court, on balance, rejected that argument. Applying the „four step‟ fair use defence summarised above, the Court decided that Google‟s creation of thumbnails of P10‟s copyrighted full-size images, and the subsequent display of those thumbnails as Google Image Search results, likely do not fall within the fair use exception. The Court concluded that “The first, second and fourth factors weigh slightly in favour of P10, and the third factor was neutral.” The deciding factor was the fact that Google‟s use of the P10 images is commercial in nature in view of the advertising revenue it generates from its AdSense and AdWords programme. The equation seen by the Court is: increased searchable content on Google‟s servers = more users = more searches = more advertising revenue. The Court was influenced by the fact that P10 submitted numerous screenshots of third-party websites that serve infringing content and also appear to be receiving and displaying AdSense ads from Google. The Court considered the fact that Google‟s thumbnails “…lead users to sites that directly benefit Google‟s bottom line”. And what about Europe? In a very recent judgment, the Danish Maritime and Commercial Court accepted the use of deep linking in relation to real estate advertisement. The Danish web portal Ofir.dk had been deep linking to real estate advertisements on the internet, including advertisements from the estate agency chain Home, who was the plaintiff in the court case. According to the court's findings, Ofir's deep linking is legal because it is done pursuant to principles of loyalty. Furthermore, the findings stipulate that deep linking in general is desirable to the function of the internet and, in particular, search engines. At the time of writing this article, the author has not been able to locate an English translation of the judgment. So watch this space! Laurence Kaye Laurence Kaye Solicitors © Laurence Kaye 2006 T: 01923 352 117 E: laurie@laurencekaye.com www.laurencekaye.com http://laurencekaye.typepad.com/ This article is not intended to be exhaustive and it does not constitute or substitute legal advice, which should be sought on a case by case basis.

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Please feel free to copy or make available this article without modification in print or electronic form for noncommercial purposes. If you do so, please include this disclaimer and copyright wording with attribution. If you want to re-publish or make the whole or part of this article available in a commercial service or publication, please contact the author at laurie@laurencekaye.com.

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