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High stakes in Nevada

By Scott Bradner

The OK news is that Google has been found not guilty of falling for an entrapment effort -- the good news is that the reasons the judge gave for his verdict, if upheld, are very good for the Internet.

At first blush the case looks like a simple one. Attorney Blake A. Field created a website (http://blakeswritings.com/) on which he posted a bunch of his copyrighted articles (some quite nice). He then added a "robots.txt" file that specifically allowed web crawling robots, such as the one used by Google, to access and index the files on his website.

As one might expect Google's robot found the website and indexed it and made cache copies of the files back at Google. Google makes a cache copy of each page so it can check them when a user does a search. Google also makes the cache copied retrievable by its users - all they have to do is to click on the "cached" link presented for each of the pages that Google finds match the search strings. As an added feature Google highlights the search strings on the version of the cashed copy it returns to the user in response to their clicking on the link.

Attorney Field sued Google for copyright infringement as soon as Google made the cached copies of his files available in spite of the fact that Field had gone out of his way to ensure that Google thought he did not object to such caches. Not only had he installed the robots.txt" but he did not include the "no-archive" meta-tag in the HTML of the pages themselves even though he knew that Google would honor such a meta-tag and not cache the page.

Nevada Judge Robert C. Jones saw through the entrapment effort and tossed out Field's request for $2.5 million because Attorney Field knew how to tell Google "no" but purposefully decided not to do so. But Judge Jones did not stop there, his judgment (http://www.eff.org/IP/blake_v_google/google_nevada_order.pdf) carefully explored whether Google making the cache downloadable by its users did violate copyright law.

Judge Jones's conclusion was that it did not for a number of reasons. He ruled that a user clicking on a URL was not an act by Google that might make Google liable and that Attorney Field had given Google (and others) a "implied license" to the material when he put it up for open access and did not try to limit that access. He also ruled that Google's downloadable cache was an example of "fair use" under US copyright law because it served purposes other than that of the original (e.g. highlighting search terms and permitting access to material on a unreachable server), Google was not making money from the cached version (it did not present ads when showing the cached version), Google did not try to fool the user into thinking the cached version was the original one, and did not change the market for the original free work.

This ruling is important for the net because it lets search engines continue to be a valuable Internet resource without a fear that their very operation is illegal. Most web sites want the attention of Google and its brethren -- those that perversely think that anonymity and making it so a site cannot be found is the way to achieve success can easily tell the robots to pass on by. It also removes a tool for those would, like SCO, destroy huge societal value for personal gain.

disclaimer: Harvard graduates often work for societal value but, as a rule, do not avoid personal gain but the above review is mine not the university's.