Advanced Copyright Issues on the Internet - Fenwick & West LLP

that the page should not be cached or archived. When the Googlebot visited a page, it wouldsearch for meta-tags in the HTML of the page and obey them. 1101The second mechanism by which Web site owners could communicate with searchengines’ robots was by placing a “robots.txt” file on the Web site containing textual instructionsconcerning whether crawling of the site was allowed. If the Googlebot encountered a robots.txtfile with a command disallowing crawling, it would not crawl the Web site, and there wouldtherefore be no entries for that Web site in Google’s search results and no “Cached” links. Thecourt noted that the Internet industry had widely recognized the robots.txt file as a standard forcontrolling automated access to Web pages since 1994. 1102In the court’s words, Field decided to “manufacture a claim for copyright infringementagainst Google in the hopes of making money from Google’s standard practice” 1103 of cachingby placing his copyrighted works on a Web site available to the public for free and creating arobots.txt file on the site with the permissions set within the file to allow all robots to visit andindex all of the pages on the site, knowing that this would cause the Googlebot to cache hiscopyrighted works. Field testified in his deposition that he had consciously chosen not to use theNOARCHIVE meta-tag on his Web site. When Google learned that Field had filed (but notserved) a complaint for copyright infringement, Google promptly removed the “Cached” links toall of the pages on his site. 1104Field alleged only claims of direct copyright infringement against Google (and made noclaims for contributory or vicarious liability), asserting that Google directly infringed hiscopyrights when a Google user clicked on a “Cached” link to the Web pages containing hiscopyrighted materials and downloaded a cached copy of those pages from Google’s systemcache. 1105 As discussed in Section II.A.4(l) above, the court ruled that Google was not a directinfringer because it lacked the necessary volitional act in responding with a purely automateddownload process to users who clicked on the “Cached” links.In addition, the court granted summary judgment to Google on its three defenses ofimplied license, estoppel, and fair use. With respect to the implied license defense, the courtfound that Field was aware of the industry standard mechanisms by which he could haveindicated a desire not to have his Web site crawled or cached, and that, with knowledge of howGoogle would use the copyrighted works he placed on his site, by choosing not to include metatagson the site that he knew would have caused the Googlebot not to archive his site, hisconduct should reasonably be interpreted as a license to Google for crawling and archiving thesite. 11061101 Id. at 1112-13.1102 Id. at *1113.1103 Id.1104 Id. at *1113-14.1105 Id. at *1115.1106 Id. at *1115-16.- 256 -