Advanced Copyright Issues on the Internet - Fenwick & West LLP

The court also found that Field should be estopped from asserting a copyright claimbased on the challenged behavior by Google. Field knew of Google’s allegedly infringingconduct well before any supposed infringement of his works took place and knew “that Googlewould automatically allow access to his works through ‘Cached’ links when he posted them onthe Internet unless he instructed otherwise.” 1107 Yet, he remained silent regarding his unstateddesire not to have “Cached” links provided to his Web site and intended Google to rely on thissilence knowing that it would. Google was not aware that Field did not wish to have Googleprovide “Cached” links to his works, and Google detrimentally relied on Field’s silence.Accordingly, the court found the four factors for estoppel present, and granted Google’ssummary judgment on the defense of estoppel. 1108The court then turned to application of each of the four factors of the fair use defense.Concerning the first factor, purpose and character of the use, the court, relying on Kelly v. ArribaSoft, 1109 found Google’s search engine was a transformative use of Field’s works in thatGoogle’s presentation of “Cached” links did not serve the same functions to enrich and entertainothers that Field’s original posting of the works did. Rather, the “Cached” links allowed users tolocate and access information that was otherwise inaccessible, and allowed users to understandwhy a page was responsive to their original query. The object of enabling users to more quicklyfind and access the information they were searching for was not served by the original page. 1110Nor did Google’s use of “Cached” links substitute for a visit to the original page. The courtnoted that Google had included at the top of each listing a prominent link to the original Webpage. The “Cached” links were displayed in smaller font and in a less conspicuous location, andthere was no evidence that Internet users accessed the pages containing Field’s works viaGoogle’s “Cached” links in lieu of visiting those pages directly. Google’s status as acommercial enterprise also did not negate the first factor weighing in Google’s favor, becausethere was no evidence that Google profited in any way by the use of any of Field’s works.Field’s works were merely among billions of works in Google’s database, and when a useraccessed a page via Google’s “Cached” links, Google did not display advertising to the user orotherwise offer a commercial transaction. 1111The court found that the second factor, the nature of the copyrighted works, weighed onlyslightly in Field’s favor. Even assuming that Field’s copyrighted works were creative, the courtnoted that he had published them on the Internet, thereby making them available to the world athis Web site, thus indicating a desire to make his works available to the widest possible audiencefor free. 1112 The court found the third factor, the amount and substantiality of the use, to be1107 Id. at 1116-17.1108 Id. at 1117.1109 336 F.3d 811 (9 th Cir. 2003).1110 Field v. Google, 412 F. Supp. 2d at 1118-19.1111 Id. at 1119.1112 Id. at 1120.- 257 -