Google caching not copyright infringement

January 30, 2006 | by Evan Brown | Leave a Comment 

Suit by plaintiff who “manufactured” claim against Google dismissed on summary judgment.

The Google search engine uses an automated program called the “Googlebot” to crawl the World Wide Web, indexing the information that is contained on billions of pages. During this process, Google makes and analyzes a temporary copy of each page the Googlebot encounters, and stores those copies on the Google servers. These stored copies are referred to as “cached” versions.

For years, Google has provided to its users links not only to the original location of web pages, but also provides links to the cached versions. A cached version shows how a particular page appeared the last time the Googlebot visited it, and also presents the user’s search terms, where they appear on the page, in highlighted text. A cached version may also provide a copy of a page that no longer exists on the server where it was originally published.

People generally agree that Google provides a useful service by making the cached versions available, and most website publishers consent to their pages being indexed in this way. Publishers who do not want Google to index their content can simply add a few lines of HTML to their pages, which instruct the Googlebot not to index those pages. This method is widely known among web developers.

Blake Field is an author who published his own literary works online. Although he knew how to include the HTML in his pages which would prevent the Googlebot from indexing his site, he left out those instructions. Eventually, Google indexed the pages containing Field’s works, and links to cached versions of the pages began showing up in Google search results.

In 2004, Field sued Google in federal court in Nevada. He alleged that by allowing users to download cached versions of his web pages, Google was infringing on the copyright to his literary works. Both Field and Google moved for summary judgment in the case, and the court ruled in favor of Google, dismissing the suit.

Google raised a number of affirmative defenses against Field’s claim of copyright infringement, and the court ruled in Google’s favor on each of them.

Implied license

The court held that Field had impliedly given Google a license to provide cached copies of his works. Of particular importance was the fact that Field knew how to prevent Google from redistributing cached versions of his work, but chose not to enact such measures. The court found that Field instead made a conscious decision to permit the caching. Accordingly, the conduct could be “reasonably interpreted as the grant of a license . . . for that use.”

Estoppel

The court also held that Field was estopped from claiming that Google had engaged in copyright infringement. On this defense, Google successfully demonstrated that (1) Field knew of Google’s allegedly infringing conduct beforehand, (2) Field intended for Google to believe it had a right to cache the pages, (3) Google was unaware of Field’s true intentions, and (4) Google detrimentally relied on Field’s conduct.

Fair use

Perhaps the most provocative portion of the court’s decision comes from its holding that Google’s providing of the cached links was protected under the doctrine of fair use. Looking at the factors set forth in Section 107 of the Copyright Act [17 U.S.C. §107], the court found that the functions served by the cached copies, e.g., showing how a page appeared in the past and highlighting search terms, made them sufficiently transformative of the original use of the pages. Even though Google provided cached copies of the entire works, the court found such use permissible, because “[w]ithout allowing access to the whole of a Web page, the Google Cached link cannot assist Web users (and content owners) by offering access to pages that are otherwise unavailable.” Finally, the court found that there was no evidence that Google’s cached copies adversely affected any market for Field’s works.

Field v. Google, — F.Supp —, No. 04-CV-413 (D.Nev., January 19, 2006).

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Computer Fraud and Abuse Act protects independent security contractor

January 25, 2006 | by Evan Brown | Leave a Comment 

In the case of U.S. v. Millot, the Eighth Circuit has upheld the conviction of a former systems analyst under the federal Computer Fraud and Abuse Act, 18 U.S.C. §1030 et seq. (”CFAA”). The appellate court affirmed the lower court’s determination that the independent contractor that was hired to fix a security problem caused by the defendant’s conduct was a “victim” as provided for under the CFAA.

When defendant Millot worked for a large pharmaceutical company, he was responsible for disabling remote access to the company’s servers once employees left the company. When Millot himself left the company, he devised a way to maintain remote access to the servers. Using this unauthorized means of access, Millot deleted the account of a high-ranking IT employee.

After Millot left the company, but before he deleted the accounts, the company outsourced all network security responsibilities to IBM. It was therefore up to IBM to restore the account and perform a security audit. IBM employees spent in excess of 400 hours un-doing the damage that Millot had done, and it billed out its employees’ time at $50 per hour, for a total cost of $20,000.

Millot was charged under the CFAA, and the matter proceeded to trial. In its instructions to the jury, the lower court classified IBM as a “victim” under the CFAA. The jury found that the costs incurred in fixing the security problem resulted in damages in excess of $5,000, thus satisfying the $5,000 minimum required for a conviction under the CFAA.

Millot challenged the jury instructions, arguing that the costs incurred by IBM should not have been considered, because the computer system was owned by the company, not IBM. The court rejected this argument:

Although the damage was done to the [company's] computer system, the [CFAA] does not restrict consideration of losses to only the person who owns the computer system, and the district court properly instructed the jury to consider losses sustained by IBM in determining whether the statutory minimum was met.

The court further held that the evidence put forth to show the costs incurred by IBM was sufficient to support the amount of damages which exceeded the statutory minimum.

U.S. v. Millot, 2006 U.S. App. LEXIS 430 (8th Cir., January 9, 2006).

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Hefty award to Sony in action against seller of PlayStation 2 “mod chips”

January 13, 2006 | by Evan Brown | 2 Comments 

Court awards over $6 million in DMCA statutory damages

Defendant Filipiak ran an online business that sold, among other things, “mod chips” that allowed Sony PlayStation and PlayStation 2 consoles to play copied games. Sony filed suit against Filipiak under the Digital Millennium Copyright Act (”DMCA”), which makes it illegal to sell any device that is primarily designed or produced to circumvent a technological measure that effectively controls access to copyrighted works. 17 U.S.C. §1201(a)(2).

Filipiak stipulated to liability for selling circumvention devices. The court awarded Sony over $6 million in statutory damages under 17 U.S.C. §1203(c)(3)(A), which provides that

At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of [17 U.S.C. § 1201] in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.

The court drew a number of noteworthy conclusions in arriving at the damages figure. First, it held that §1203(c)(3)(A) authorizes a separate award of statutory damages for each device sold. (Filipiak had sold thousands of devices.) Next, the court looked to §504 of the Copyright Act (17 U.S.C. §504) to help it construe the meaning of the word “just” as it appears in §1203. No previous case had construed the meaning of the term in §1203, so the attorney’s fees provision of §504 provided guidance.

The amount of damages was calculated by awarding $800 per mod chip sold before June 12, 2004, and the full amount of $2,500 per mod chip sold after June 12, 2004. On that date, Filipiak had signed a stipulated injunction in which he agreed to discontinue sales of the chips and related software. The court concluded that the sales made after Filipiak signed the agreement constituted a willful violation of the DMCA, thus justifying a higher amount of statutory damages.

Sony Computer Entertainment America, Inc. v. Filipiak, (Slip. Op.) 2005 WL 3556676 (N.D. Cal., December 27, 2005).

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