Let's say, just for fun, that you lived in Nevada in 2004. Let's also say that you were a lawyer, a lawyer who wanted to make a lot of money—but without working too hard. How might you have gone about it? Well, perhaps you sat down at a computer for three days in January and typed up 51 pieces of what can only be called "text" (neither poetry nor prose quite seems to fit and "string of letters" seems a little harsh). You gave them titles like "Good Burritos" and created stanzas that would make T.S. Eliot weep:
There's this burrito joint that's not too far from here,
and they make a pretty good burrito.
It's also a very inexpensive burrito, as their
cadillac [sic] entre [sic] is the most expensive at $4.10.
And for that, you get a whole lot of food.
A burrito as big as your head, even.
Then, because you're a lawyer and you've really thought this through, you created a web site and posted all 51 works there. Then you registered for copyright on every work and waited for Google to index the site. Once that happened, you searched for your own material, found it, then clicked on the "Cached" link to display a copy stored on Google's servers. Why would this make you a truckload of money? Because you then sued Google for violating your "exclusive rights to reproduce copies and distribute copies of those works."
We sincerely wish this were a joke, but it was instead the actual plan of one Blake Field, a Nevada lawyer. Those of us at the Orbiting HQ with any remaining innocence immediately lost it upon hearing the sordid tale, which wins the award for Most Cynical Use of the Legal System in the new millenium. We were cheered to find, though, that a solid judicial beatdown was administered to Mr. Field by the Honorable Robert C. Jones, US District Court Judge.
Actually, the story above does not even do full justice to the bizarre facts of the case. Mr. Field purposely created a robots.txt file that allowed robots to index the site, and he failed to use the "no-archive" meta-tag even though he was familiar with it. He made no effort to contact Google about removing the cached version of his site from their servers. Then he sued them for US$2.5 million dollars in statutory damages—on works he had all but crapped out over a couple of days and had no intention of publishing.
Unsurprisingly, the judge took a dim view of such matters, and ruled in favor of Google on every count. But despite the asinine nature of the lawsuit, it does raise interesting questions about copyright regarding Google's cache. The judge ruled that Google could not be held guilty of "direct infringement" because such infringement requires "a volitional act by defendant; automated copying by machines occasioned by others not sufficient." Because Google's indexing is automated and the purpose of the indexing is not generally to infringe upon copyright, the judge ruled that they could not be held liable. He also claimed that Field had granted an "implied license" to Google by publishing his material and then specifically allowing the Googlebot to crawl the site. Third, Field is "estopped" from making his copyright claim because he actively induced Google to use his material and made no attempt to contact them once they had done so. Finally, the judge also ruled that Google's cache represented a "fair use" of Field's copyrighted work, and complied with all four parts of the "fair use" test enshrined in copyright law. (For more information, check out the entire decision. It's only 25 pages and a good read.)
Obviously, a case like this has implications for Google's battle with publishers over its Google Print program. Though the issues are not exactly the same, Google could mount a similar defense against charges from the publishing industry that its plan to show snippets of copyrighted books would infringe on their rights. Google would make money through the program, of course, but that alone does not prevent the company from exercising the same fair use rights as anyone else (see p. 16 of the decision for more on this). It will no doubt take many more cases to sort out all of the copyright issues bound up with search technology, but this most recent case sends a clear message that Google and its cache are standing on solid legal ground.
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