Advanced Copyright Issues on the Internet - Fenwick & West LLP

The court ruled that, as a result of the plaintiff’s failure to employ the robots.txt protocolon his web site or to send the defendants a take down notice, the defendants had an affirmativedefense of implied license for acts of caching prior to the lawsuit. From the plaintiff’s silenceand lack of earlier objection, the defendants could properly infer that the plaintiff knew of andencouraged the search engines’ activity. However, the court refused to dismiss entirely theplaintiff’s count for direct copyright infringement because the defendants had allegedlycontinued to display the plaintiff’s works even after the filing of the lawsuit. The court notedseveral decisions holding that a nonexclusive implied license can be revoked where noconsideration has been given for it, and initiation of a lawsuit itself may constitute revocation ofan implied license if there was no consideration for the license. 1129However, the court dismissed the plaintiff’s counts for contributory and vicariouscopyright infringement on the part of the defendants based on allegedly infringing copies of theplaintiff’s content made when an Internet user’s browser stored a temporary copy of a file thatwas necessary for the user to view the web site. The court ruled that, by publishing his worksonline with no registration requirement or any other access measure taken, the plaintiff hadimpliedly authorized Internet users at large to view his content and, consequently, to makeincidental copies necessary to view that content over the Internet. And even if search engineusers did directly infringe the plaintiff’s copyright, the court held that the plaintiff had not setforth any plausible allegation that either defendant financially benefitted from such infringement.Nor had the plaintiff alleged that either defendant had knowledge of any third party’sinfringement. 11305. Other Caching Cases(a) Facebook v. Power VenturesIn Facebook, Inc. v. Power Ventures, Inc., 1131 the defendants operated an Internet servicecalled Power.com that collected user information from Facebook’s web site outside of the“Facebook Connect” application programmer’s interface (API). After a user provided his or heruser names and passwords, the Power.com service used the access information to scrape userdata from those accounts. Facebook alleged that the defendants committed direct and indirectcopyright infringement when they made cached copies of Facebook’s web site during the processof extracting user information. The defendants brought a motion to dismiss the copyright claims.The court denied the motion, ruling that Facebook’s allegation that the defendants made anunauthorized cache copy of the web site on each occasion of access to scrape data was sufficientto survive a motion to dismiss. 11321129 Id. at *14-16.1130 Id. at *18-20.1131 2009 U.S. Dist. LEXIS 42367 (N.D. Cal. May 11, 2009).1132 Id. at *1-11.- 261 -