Advanced Copyright Issues on the Internet - Fenwick & West LLP

neutral. The transformative and socially valuable purposes served by Google’s caching couldnot be effectively accomplished by using only portions of the Web pages. 1113The court ruled that the fourth factor, the effect of the use upon the potential market foror value of the copyrighted work, weighed strongly in favor of a fair use determination. Thecourt noted that here there was no evidence of any market for Field’s works, and Field had madethe works available to the public for free in their entirety and admitted he had never received anycompensation from selling or licensing them. 1114 In a significant holding, the court rejectedField’s argument that Google’s caching harmed the market for his works by depriving him ofrevenue he could have obtained by licensing Google the right to present “Cached” links for thepages containing his works. The court recognized the bootstrapping nature of the argument:“Under this view, the market for a copyrighted work is always harmed by the fair use of thework because it deprives the copyright holder of the revenue it could have obtained by licensingthat very use. The Supreme Court has explained that the fourth fair use factor is not concernedwith such syllogisms [citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 592 (1994)]. …Where there is no likely market for the challenged use of the plaintiff’s works, the fourth fair usefactor favors the defendant.” 1115Finally, the court noted that in adjudicating fair use, courts may consider other factorsbeyond the four enumerated ones in the copyright statute. In this case, the court found itsignificant that Google had acted in good faith, as evidenced by the fact that Google honored theindustry standard protocols that site owners could use to instruct search engines not to provide“Cached” links for the pages of their sites. Google also provided an automated mechanism forpromptly removing “Cached” links from Google’s search results if undesired links everappeared. And Google had, without being asked, promptly removed the “Cached” links to thepages of Field’s site upon learning that he objected to them. 1116 Accordingly, balancing all thefactors, the court granted summary judgment for Google on its fair use defense. 1117 As discussedfurther in Section II.C.5(b)(1)(ii).a below, the court also concluded that Google was entitled tothe safe harbor of Section 512(b)(1) of the DMCA. 1118(b) Perfect 10 v. Google (aka Perfect 10 v. Amazon)In Perfect 10 v. Google, 1119 discussed in detail in Section II.C.4 above, the district courtruled, contrary to the Intellectual Reserve case discussed in Section III.D.6 above, that thecaching that occurs in an Internet user’s web browser constitutes a fair use:1113 Id. at 1120-21.1114 Id. at 1121.1115 Id. at 1121 n.9.1116 Id. at 1122-23..1117 Id. at 1125.1118 Id. at 1123-24.1119 416 F. Supp. 2d 828 (C.D. Cal. 2006), aff’d sub nom. Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1169(9 th Cir. 2007).- 258 -