Advanced Copyright Issues on the Internet - Fenwick & West LLP

4. Cases Adjudicating Caching Under the Fair Use and Implied LicenseDoctrines(a) Field v. GoogleIn Field v. Google 1098 the plaintiff, Field, alleged that by allowing Internet users to accesscopies of his copyrighted works stored by Google in its online cache, Google was violating hisexclusive rights to reproduce and distribute copies of those works. The court ruled that Google’sacts were covered by the fair use and implied license doctrines.The challenged acts arose in the context of Google’s search engine and its accompanyingWeb crawler, the Googlebot. The Googlebot automatically and continuously crawled theInternet to locate and analyze Web pages and to catalog those pages into Google’s searchableWeb index. As part of the process, Google made and analyzed a copy of each Web page theGooglebot found and stored the HTML code from those pages in a cache so as to enable thosepages to be included in the search results displayed to users in response to search queries. WhenGoogle displayed Web pages in its search results, the first item appearing was the title of a Webpage which, if clicked, would take the user to the online location of that page. The title wasfollowed by a short snippet of text from the Web page in a smaller font. Following the snippet,Google typically provided the full URL for the page. Then, in the same smaller font, Googleoften displayed another link labeled “Cached.” When clicked, the “Cached” link directed a userto the archival copy of a Web page stored in Google’s system cache, rather than to the originalWeb site for that page. By clicking on the “Cached” link for a page, a user could view thesnapshot of that page as it appeared the last time the site was visited and analyzed by theGooglebot. 1099The court noted that Google provided “Cached” links for three principal reasons – toallow viewing of archival copies of pages that had become inaccessible because of transmissionproblems, censorship, or because too many users were trying to access the content at a particulartime; to enable users to make Web page comparisons to determine how a particular page hadbeen altered over time; and to enable users to determine the relevance of a page by highlightingwhere the user’s search terms appeared on the cached copy of the page. 1100Of particular relevance to the court’s rulings were certain widely recognized and wellpublicized standard protocols that the Internet industry had developed by which Web site ownerscould automatically communicate their preferences to search engines such as Google. The firstmechanism was the placement of meta-tags within the HTML code comprising a given page toinstruct automated crawlers and robots whether or not the page should be indexed or cached.For example, a “NOINDEX” tag would indicate an instruction that the Web page in which it wasembedded should not be indexed into a search engine, and a “NOARCHIVE” tag would indicate1098 412 F. Supp. 2d 1106 (D. Nev. 2006).1099 Id. at 1110-11.1100 Id. at 1111-12.- 255 -