Advanced Copyright Issues on the Internet - Fenwick & West LLP

such as upon payment of a fee or provisions of a password, permit access to the cachedinformation “in significant part” 1771 only upon the same conditions; and (v) respondexpeditiously to remove or disable access to any cached information upon receipt of notice thatsuch information has been removed or disabled from the originating site (or ordered by a court tobe removed) from which the information was cached.a. Field v. Google. The facts of the case of Field v.Google 1772 are set forth in Section III.B.4(a) above. In that case, the court ruled that Google wasentitled to the Section 512(b) safe harbor for its activities of caching web sites through its Webcrawler known as the “Googlebot” and making the cached copies of particular pages availablefor download directly from Google’s computers by end users clicking on the “Cached” link to aweb page contained in search results returned by Google’s search engine.The court rejected a number of arguments by the plaintiff, Field, concerning why Googleshould not be entitled to the Section 512(b) safe harbor. First, Field contended that, in operatingits cache, Google did not make “intermediate and temporary storage” of the cached material, asrequired by Section 412(b)(1). The court cited the Ellison v. Robertson case, 1773 involving theSection 512(a) safe harbor, which ruled that AOL’s storage of Usenet postings for about 14 dayswas both “intermediate” and “transient” as required by Section 512(a). Analogizing to that case,the court noted that the copy of Web pages Google stored in its cache were present forapproximately 14 to 20 days. The court found that this period was sufficiently short to bedeemed “temporary” under Section 512(b). 1774In a significant aspect of its ruling, the court also implicitly held that, to qualify for theSection 512(b) safe harbor, the caching need not be done only after a user has made an initialrequest for the materials being cached, but could be done in anticipation of user requests for thematerials: “Like AOL’s repository of Usenet postings in Ellison which operated between theindividuals posting information and the users requesting it, Google’s cache is a repository ofmaterial that operates between the individual posting the information, and the end-userrequesting it.” 1775Field also contended that Google’s cache did not satisfy the requirements of Section512(b)(1)(B) that the material in question be transmitted from the person who makes it availableonline, here the plaintiff, to a person other than himself, at the direction of the other person. 1776The court rejected this argument: “Field transmitted the material in question, the pages of hisWeb site, to Google’s Googlebot at Google’s request. Google is a person other than Field.1771 This language appears to have been inserted in recognition of the fact that hackers or others may be able tocircumvent such restrictions on access without knowledge of the Service Provider. Id. at 7.1772 412 F. Supp. 2d 1106 (D. Nev. 2006).1773 357 F.3d 1072, 1081 (9 th Cir. 2004).1774 Field v. Google, 412 F. Supp. 2d at 1124.1775 Id.1776 Id.- 386 -