Field v. Google
Encyclopedia
Field v. Google, Inc., 412 F.Supp. 2d 1106 (D. Nev. 2006) is a case where Google Inc. successfully defended a lawsuit for copyright infringement
. Field argued that Google infringed his exclusive right to reproduce his copyrighted works when it "cache
d" his website and made a copy of it available on its search engine. Google raised multiple defenses: fair use
, implied license, estoppel
, and Digital Millennium Copyright Act
safe harbor protection. The court granted Google's motion for summary judgment
and denied Fields motion for summary judgment.
, Blake Field, is an attorney, author, and member of the State Bar
of Nevada. On April 6, 2004, Field filed a complaint
against Google asserting a single claim for copyright infringement due to Google's alleged copying and distributing one of his works (Good Tea) that he had previously published on his personal website, www.blakeswriting.com. On May 25, 2004, Field filed an Amended Complaint, stating that Google had infringed on an additional 50 works published by Field on his personal website.
Field sought $2,550,000 in statutory damages
($50,000 for each of the 51 registered copyrighted works) in conjunction with injunctive relief.
The defendant
, Google, operates a popular search engine
. To enable users to search billions of websites, Google uses an automated program called the "Googlebot
." This program crawls
the internet looking for new sites to include in its index. Once a site is found the Googlebot creates a "cached" version of the site. The cached version is then included in the search results of its search engine. When a user clicks the link to the cached version, the user can view a "snapshot" of the page as it appeared at the time the Googlebot found the site.
Website creators have the option of preventing the Googlebot from indexing their sites by including a simple code in the HTML. In addition, websites can include code that allows the site to be included in Google's index, but that prevents Google from caching the website.
Field had actual knowledge of the Googlebot. He also was aware of the ways to prevent Google from either listing his site at all or listing it but not providing a link to the cached version. Instead of opting out
, however, he chose to allow Google to both index and provide a link to the cached version.
(1) Operator did not directly infringe on author's copyrighted works;
(2) Author granted operator implied license to display “cached” links to web page
s containing his copyrighted works;
(3) Author was estopped from asserting copyright infringement claim against operator;
(4) Fair use doctrine protected operator's use of author's works; and
(5) Search engine fell within protection of safe harbor
provision of Digital Millennium Copyright Act (DMCA).
Summary judgment for operator.
The court held that "Field decided to manufacture a claim for copyright infringement against Google in the hopes of making-money from Google's standard practice." The court then went on to rule in Google's favor on all of its defense theories.
to affirmatively take steps to prevent infringement, In this case, however, the court held that a license for Google to cache the site was implied because Field failed to take the simple steps to prevent his site from being cached by Google.
The second factor, "the nature of the copyrighted works" also weighed in favor of Google because the works were available for free on Field's website.
The third factor, "the amount and substantiality of the use" weighed equally for both parties. Although Google cached the entire website, the fact that Field made the works available on his website and the difference in the use of the two made this factor neutral.
The fourth factor, "the effect of the use upon the potential market for or value of the copyrighted work" weighed in favor of Google. There was no market for Field's works and the caching did not impact any potential market for his works.
The court considered an additional factor, "Google's good faith
in operating its system cache," which favored fair use. Google used industry standard
procedures that allowed website operators to prevent caching. Google promptly removed the cache's to Field's work when it learned that Field did not want them.
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
. Field argued that Google infringed his exclusive right to reproduce his copyrighted works when it "cache
Cache
In computer engineering, a cache is a component that transparently stores data so that future requests for that data can be served faster. The data that is stored within a cache might be values that have been computed earlier or duplicates of original values that are stored elsewhere...
d" his website and made a copy of it available on its search engine. Google raised multiple defenses: fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
, implied license, estoppel
Estoppel
Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative...
, and Digital Millennium Copyright Act
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
safe harbor protection. The court granted Google's motion for summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
and denied Fields motion for summary judgment.
Background
The plaintiffPlaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
, Blake Field, is an attorney, author, and member of the State Bar
State bar association
A state bar association is a bar association that represents or seeks to represent all of the attorneys in a specific U.S. state. Membership in such an association may be voluntary or mandatory for practitioners in that state. State bar associations may be tasked with the administration of the...
of Nevada. On April 6, 2004, Field filed a complaint
Complaint
In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...
against Google asserting a single claim for copyright infringement due to Google's alleged copying and distributing one of his works (Good Tea) that he had previously published on his personal website, www.blakeswriting.com. On May 25, 2004, Field filed an Amended Complaint, stating that Google had infringed on an additional 50 works published by Field on his personal website.
Field sought $2,550,000 in statutory damages
Statutory damages
Statutory damages are a damage award in civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine a precise value of...
($50,000 for each of the 51 registered copyrighted works) in conjunction with injunctive relief.
The defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
, Google, operates a popular search engine
Search engine
A search engine is an information retrieval system designed to help find information stored on a computer system. The search results are usually presented in a list and are commonly called hits. Search engines help to minimize the time required to find information and the amount of information...
. To enable users to search billions of websites, Google uses an automated program called the "Googlebot
Googlebot
Googlebot is the search bot software used by Google, which collects documents from the web to build a searchable index for the Google search engine....
." This program crawls
Web crawler
A Web crawler is a computer program that browses the World Wide Web in a methodical, automated manner or in an orderly fashion. Other terms for Web crawlers are ants, automatic indexers, bots, Web spiders, Web robots, or—especially in the FOAF community—Web scutters.This process is called Web...
the internet looking for new sites to include in its index. Once a site is found the Googlebot creates a "cached" version of the site. The cached version is then included in the search results of its search engine. When a user clicks the link to the cached version, the user can view a "snapshot" of the page as it appeared at the time the Googlebot found the site.
Website creators have the option of preventing the Googlebot from indexing their sites by including a simple code in the HTML. In addition, websites can include code that allows the site to be included in Google's index, but that prevents Google from caching the website.
Field had actual knowledge of the Googlebot. He also was aware of the ways to prevent Google from either listing his site at all or listing it but not providing a link to the cached version. Instead of opting out
Opting out
Opting out is a political expression that was formulated in Canada to describe the intention of a province to remove itself from a program administered by the federal government, or to exempt itself from a constitutional amendment that would transfer its legislative powers to Parliament.Up until...
, however, he chose to allow Google to both index and provide a link to the cached version.
Ruling
The District Court, Jones, J., held that:(1) Operator did not directly infringe on author's copyrighted works;
(2) Author granted operator implied license to display “cached” links to web page
Web page
A web page or webpage is a document or information resource that is suitable for the World Wide Web and can be accessed through a web browser and displayed on a monitor or mobile device. This information is usually in HTML or XHTML format, and may provide navigation to other web pages via hypertext...
s containing his copyrighted works;
(3) Author was estopped from asserting copyright infringement claim against operator;
(4) Fair use doctrine protected operator's use of author's works; and
(5) Search engine fell within protection of safe harbor
Safe harbor
The term safe harbor has several special usages, in an analogy with its literal meaning, that of a harbor or haven which provides safety from weather or attack.-Legal definition:...
provision of Digital Millennium Copyright Act (DMCA).
Summary judgment for operator.
The court held that "Field decided to manufacture a claim for copyright infringement against Google in the hopes of making-money from Google's standard practice." The court then went on to rule in Google's favor on all of its defense theories.
Direct infringement
The court relied on two prior cases (Religious Tech. Ctr. v. Netcom On-Line Comm'n Services Inc. and CoStar Group Inc. v. LoopNet, Inc.) and held that "volitional conduct on the part of the defendant" is required for a showing of direct infringement. In this case, "Google is passive in the process." "Google's computers respond automatically to the user's request." Thus, there was no volitional conduct on Google's behalf and hence no direct infringement.Implied license
Courts usually do not require a copyright holderCopyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
to affirmatively take steps to prevent infringement, In this case, however, the court held that a license for Google to cache the site was implied because Field failed to take the simple steps to prevent his site from being cached by Google.
Estoppel
The court held that: (1) Field knew of Google's allegedly infringing conduct; (2) Field intended that Google rely upon his conduct or acted so that Google had a right to believe it was so intended; (3) Google was ignorant of the true facts; and (4) Google detrimentally relied on Field's conduct.Fair use
The court applied the 4 statutory factors from 17 U.S.C. 107 and held that Google's caching was fair use. The first factor, "the purpose and character of the use" weighed in Google's favor. The court stated that Google's use was transformative and did not merely supersede Fields use. The court explained that Fields use was to enrich the lives of others through poetry, while Google's use was to facilitate the operation of search engines. The court identified multiple characteristics that distinguished Google's use from Fields including: Google's use is for archival purposes; (2) Google's use allows users to track changes in websites; (3) Google's use allows users to figure out why a particular page resulted from a search. The court further held that Google's commercial status was of little importance because the Google's use was transformative.The second factor, "the nature of the copyrighted works" also weighed in favor of Google because the works were available for free on Field's website.
The third factor, "the amount and substantiality of the use" weighed equally for both parties. Although Google cached the entire website, the fact that Field made the works available on his website and the difference in the use of the two made this factor neutral.
The fourth factor, "the effect of the use upon the potential market for or value of the copyrighted work" weighed in favor of Google. There was no market for Field's works and the caching did not impact any potential market for his works.
The court considered an additional factor, "Google's good faith
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
in operating its system cache," which favored fair use. Google used industry standard
Standardization
Standardization is the process of developing and implementing technical standards.The goals of standardization can be to help with independence of single suppliers , compatibility, interoperability, safety, repeatability, or quality....
procedures that allowed website operators to prevent caching. Google promptly removed the cache's to Field's work when it learned that Field did not want them.
DMCA safe harbor
The court held that Google qualified for the Digital Millennium Copyright Act's safe harbor provisions in 17 U.S.C. 512(b).Other links
- Field v Google Inc., 412 F.Supp.2d 1106 (D. Nev. 2006): justia.com; court order hosted at Stanford
- Blake Fields website at archive.org
- Good Tea By Blake A. Field - as Recorded on Archive.org (April 7, 2004 Screenshot of www.blakeswriting.com)