Is Google’s Caching Copyright Infringement?

In this post, I will focus on the issue of ‘caching’ and whether it constitutes copyright infringement or not.

WHAT IS CACHING?

‘Caching’ is a technical process which essentially involves the storage of data so that future requests for that particular data can be served faster. In relation to Google, this can be illustrated as follows:

The primary objective of Google is to crawl as many web pages as possible and serve them as results to a user when certain keywords are entered. In an effort to do this, Google bots trawl as many pages as possible and pick up necessary information about the site (size, title, URL etc.). However, what it also does is create a cached copy of the webpage. Thus, an exact replica of your webpage is stored on Google’s servers and this can be displayed to users if the original webpage is down. The cache is refreshed approximately every two weeks.

Why create a cached copy?

Although Google serves the original webpage in its search results, it sometimes becomes necessary to serve the cached copy for the following reasons:
1. The underlying webpage has gone offline because of server load
2. The link is broken
3. The webpage may have been deleted (the reasons for this are multiple). But very often, gaining access to such a deleted pages becomes important. Investigators in criminal offences have often relied on cached pages for evidence.

Can one opt out of caching?

Google, as a champion of privacy and possibly wary of potential legal issues, gives the owner of the webpage the ability to prevent Google from caching one’s website. This can be done by means of a simple HTML tag, as discussed in the Google FAQ page. I raise this point now because it has an important bearing on the judgement delivered in the case discussed below.

JUDICIAL PRECEDENT ON THE POINT – Field v. Google

FACTS OF THE CASE

In this case, Blake Fields, himself an attorney, and a poet, published his poems on his blog. Google, in the course of indexing his blog, created a cached copy of his poems. In September of 2004, he filed a copyright infringement suit against Google claiming that caching of his poem “Good Tea” involved:
a) Unauthorised Copying of his work
b) Unauthorised distribution of his work

He claimed that when Google served, and users clicked on the cached copy of his poems, Google was not only ‘distributing’ unauthorised copies of his work, but ‘creating’ an unauthorised copy as well.

The other important points to be kept in mind are that:
a) Field registered his poems with the Copyright Office before publishing them on his website
b) He did not use the code that prevents Google from caching his website

ISSUES:

1) Does the creation of a cached copy constitute unauthorised copying?
2) When Google serves the cached copy as a result to a user, is it unauthorised distribution?

RULING OF THE COURT:

Direct Infringement:
The Court found no case of direct infringement on the part of Google since the entire process of displaying the search results and then viewing the cached page was a non-volitional act on the part of Google. As a side note, it must be mentioned that ‘safe harbour’ provisions relating to copyright infringement always mention that there can be no liability if the act was an automated process and not volitional. It is also interesting to note that Field did not claim that Google’s initial creation of a cached copy, as part of its cache database, was infringement. Neither did he claim that users who clicked on the cached copy link were infringing and hence Google was vicariously liable. It seems Field took the hardest position possible by claiming ‘creation’ of new copies when the link was clicked.

Implied License:
This is arguably the soul of the judgement, with important ramifications for future copyright cases on the Internet. The Court ruled that in the age of the Internet, there is an ‘implied license’ to view pages containing copyrighted material. This is interesting, yet simple to understand. Every time a user clicks on a link (say an editorial piece of a newspaper) the web page is technically stored in the computer’s history, thereby creating a copy. But if this implied license did not exist, then every time a user did this, he would be liable for direct infringement. Thus, Google had an ‘implied license’ to store and display cached copies of Field’s poems.

The Court relied heavily on the fact that there was an opt-out option which Field was aware of, to prevent caching of his works. There is therefore, a significant ‘knowledge’ element attributed to Field’s actions, and the Court rightly notes that despite having “knowledge of how Google would use the copyrighted works he placed on those pages, Field instead made a conscious decision to permit it”.

Fair Use:
The fair use defence under American copyright law consists of the four-pronged test and the Court ruled that the fair use defence was available to Google for the following reasons.

1. Purpose and character

To briefly summarise the Court’s ruling on this point:

• Field claimed his poems were of artistic character, so Google, in creating cached copies was increasing access to such work, which has previously been held in many cases, to be lawful. Thus, Google’s actions supported the intention of copyright law to stimulate creativity for the enrichment of the general public.
• It was also held to be transformative because of the ‘addition’ on the part of Google’s act. It allowed access when the original page was inaccessible, allowed changed to be detected if the page was ever modified or even deleted, amongst other reasons.
• The commercial nature of the act was held to be insignificant given its transformative nature.

2. Nature of the copied work

• The Court found that the nature of his works were creative and hence greater access to his work should be allowed
• His works were previously published on his website and already freely available
• This factor is insignificant given the transformative test

3. Amount and substantiality of copied work
The Court again relied on the fact that all of the material was freely available to begin with and held this factor to be neutral.

4. Effect upon original work’s value
The court found that there was no evidence that Google’s ‘Cached’ links had any impact on the potential market for Field’s work, since there was no commercial impact from the caching and his works were available for free.

Safe Harbour Provisions:
Google took the statutory defence provided for under Section 512(b) of the DMCA. The court found that the conditions set out under the provisions were satisfied for the following reasons:
a) The storage was temporary as the 14 day period has been previously held to be so.
b) The work was initially transmitted by Field to the Google bot since he didn’t employ the preventive measure available to him
c) The act of serving the cached page was a non-volitional act on the part of Google and an automated process based on a search query of a user.

POSITION IN INDIA

AMENDMENT TO THE INDIAN COPYRIGHT ACT

As seen above, while the ‘implied license’ ruling has applicability in the given case, even if the Court had not recognised the doctrine of implied license, Google (or any other OSP for that matter) could have taken the statutory defences provided for under the DMCA.

Now, coming to Indian law, one could direct attention to the proposed amendment to the Indian copyright Act with the addition of the following to Section 52(1). – ‘acts not to be infringement of copyright‘ – with the following wording:

“(i) the transient and incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;

(ii) such transient and incidental storage for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy; Provided that if the person responsible has prevented the storage of a copy on a complaint from any person, he may require such person to produce an order from the competent court for the continued prevention of such storage.”

The wording appears similar to that contained in S. 512(b) of the DMCA relating to caching. There are some discernible ambiguities in the wording of the section, most significantly, the complete absence of the word ‘cache‘ being used, unlike the DMCA which explicitly uses this word. Most importantly however, is the fact that the safe harbour-enabling provision contained in Section 79 of the IT Act has a direct relation with Section 81 of the IT Act and there is no clarity in that regard as well (see our posts on the issue). Thus, the S.79-S.81 controversy has a direct bearing on the ability of an ISP to take an affirmative defence under the Copyright Act, as suggested above, and only when that question is resolved while the proposed amendment have any effect.

CURRENT POSITION UNDER INDIAN LAW

Perhaps the crucial question is – What is the current position, if not for the amendment? I would hesitate to point out any definite position, given the lack of any clear judicial precedent, but to venture a guess, I would say that the reasoning employed in Field would apply in India as well. Th fair use provisions under U.S. law are admittedly more detailed, but I would surmise that Indian courts would see a reasonably clear transformative character in the act of caching. The additional benefits that arise from caching cannot be easily dismissed, although the nature of the copyrighted work that is being cached is significant. Indian OSP’s right now will have to contend with the ambiguity in the interpretation of S.79 and S.81 of the IT Act and this may also have a bearing on the outcome.

Thus, I feel that based on a purely fair-use analysis and the theory of ‘implied license‘ herladed in Field, I see the same outcome in Indian courts, irrespective of the proposed amendment coming into force. The statutory defence would be an additional shield for an ISP, but even without it, the ‘implied license’ and ‘fair use’ defences would be sufficient for Google, in India, to exclude liability.

DOES POSTING YOUR WORK ONLINE GIVE OTHERS THE RIGHT TO COPY?

Extending the whole issue of ‘implied license’, the entire debate leads one to ask the question – if I publish/post my work online, does the above reasoning hold good? I should perhaps use an example closer home – if someone were to copy/republish this post I just wrote, from the SpicyIP blog, would it amount to copyright infringement, or would the ‘implied license’ reasoning apply? Essentially, could someone copy this post and claim that there is an implied license. since Amlan:
1. Posted this work as a webpage on the internet
2. The work was available for free
3. Allowing others to share this content of this post
4. Google indexes Spicy IP so it can easily be found for free
5. Did not prevent copying by disabling righ-click/save-as options

This is where the ‘implied license’ argument is subject to some limitations and caveats. I will distinguish the two based on two main points:

1. For one, Blogger, unlike Google, does not have an opt-out option so essentially there is no easy way for me to prevent my work from being indexed by Google.

2. Google’s act of caching is a purely automated process, and the ruling in Field states as much. However, if someone were to post the content of this blog on another wbpage, it would be difficult if not impossible to argue that there was no human intervention at all.

Basically, the point I am trying to make is that the ‘implied license’ doctrine should be narrowly contrued as applying only in specific cases. It cannot be taken as a defence when there is obvious intention to infringe and there is human intervention involved. In the latter example I provided, of reposting material from SpicyIP or any other blog for that matter, one has to account for the ‘fair use’ defence and based on the facts and circumstances, come to a decision, and not merely dismiss the claim based on the ‘implied license’ doctrine. As always, readers’ comments are welcome.