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Google "Cache" Not Copyright Violation
Brett_Tabke




msg:714334
 3:47 pm on Jan 26, 2006 (gmt 0)

I believe this is the most important legal ruling - maybe in the history of the internet:

[news.com.com...]

A Nevada federal court has ruled that the cached versions of Web pages that Google stores and offers as a part of many search results are not copyright infringement.

Clearly, the court did not understand what real caching is and what Google calls caching. I do not thing Googles meets the crieteria for caching:

The material described in paragraph (1) is transmitted to the subsequent users described in paragraph (1)(C) without modification to its content from the manner in which the material was transmitted from the person described in paragraph (1)(A) {FN104: 17 U.S.C. §512(b)(2)(A)}

What this does I think, is effectively neuters all copyright laws on the internet today. It is the wild-wild west again.

With all that Google has done that is good - I don't know how we could be so far apart on this one issue.

Blake Field: (who brought the suit):
[blakeswritings.com...]

 

walkman




msg:714364
 5:29 pm on Jan 26, 2006 (gmt 0)

>> it was cached hundred times on diffrenet routers and networks around the globe.

How many people saw that material there, and /or felt no need to go to the original page becuase they saw what they needed on the Cisco router or whatever cache?

I rest my case,

Kufu




msg:714365
 5:33 pm on Jan 26, 2006 (gmt 0)

This is a bit of an overreaction to the implications of this ruling. It is not that the judge didn't understand what the 'cache' is, it is that the plaintiff didn't use the means available to him to request his pages from not being 'cached'. This is important because of this section in the ruling:

Bottom of page 11 of the ruling:

B. Estoppel
A plaintiff is estopped from asserting a copyright claim “if he has aided the defendant in infringing or otherwise induced it to infringe or has committed covert acts such as holding out . . . by silence or inaction.” See Quinn, 23 F. Supp. 2d at 753 (internal quotation marks omitted, citing 4 Nimmer § 13.07 (1990)).

I'm going to draw a very rough parallel by the following example:

If I leave the door to my store open, and leave the store unattended and watch from the back room as someone comes in and takes my merchandise, and I don't take an action against the perpetrator, then I am by implication giving him permission to take my merchandise.

The point of this ruling is not to allow any isp, engine, etc. to highjack your pages, but to protect them from a lawsuit if the publisher of a website implicitly allows for the caching of his content. By putting a simple 'no cache' tag the whole problem will be solved, because the publisher has actively indicated that he does not want his content to be cached. So no PR9 site can scrape my content, and call it a cache if I indicated that I don't want my site to be cached.

I am off on this?

Brett_Tabke




msg:714366
 5:39 pm on Jan 26, 2006 (gmt 0)

>overreaction to the implications of this ruling.

This wasn't some tiny little court - this was US Fedral District court.

> If I leave the door to my store open, and leave
> the store unattended and watch from the back room
> as someone comes in and takes my merchandise, and
> I don't take an action against the perpetrator, then
> I am by implication giving him permission to take my merchandise.

Your only obligation is to call the police and report the theft. This is what Blake did when he discovered the theft of his copyrighted works.

> the plaintiff didn't use the means available
> to him to request his pages from not being 'cached'.

A victim has no legal responsibility to "defend himself" from theft.

Remember a few years ago, the case were the judge ruled that it wasn't rape since she asked her attacker to wear a condom? Same stuff - different day.

> By putting a simple 'no cache' tag the whole problem

This is non standard - will not validate, and may break some browsers. It's usage is not endorsed. The tag itself is an invention of Google, and it may be the intellectual property of Google. Usage of it, may be a declaration that your works belong to Google.

Besides - you can not put a no cache tag on all documents - it is not tecnically possible [72.14.203.104].

> they come across legal issues they
> may have never seriously thought of.

They have done some serious thinking about this issue from day one.

My first and only interaction with Larry Page was an email I sent to him in 1999 asking why they were caching our client sites without permission. One week later, Google introduced the nocache tag.

BigDave




msg:714367
 5:55 pm on Jan 26, 2006 (gmt 0)

What I think this decision makes clear is that the average webmater has very little concept of where and how copyright and other laws apply to their works.

I always thought that the cached pages were google's biggest weakness, but I also thought that they had a better case than most posters here.

I'm too busy to deal with reposting it all today (I can hear the cheering now) but if anyone cares, my position was made very clear a couple of years ago in this thread.

[webmasterworld.com...]

No, this does not give scrapers rights to your content. It does not give Google the right to do whatever they want with that page.

As always, it is not appropraite to compare copyright issues with personal property issues, they are not comparable. Doing so just shows a lack of understanding about copyright.

Kufu




msg:714368
 5:57 pm on Jan 26, 2006 (gmt 0)

> Your only obligation is to call the police and report the theft. This is what Blake did when he discovered the theft of his copyrighted works.

Well actually my responsibility would be to watch my store and not allow people to take merchandize from being taken. This is easily accomplished by my visible presence (of course there are always shoplifters).

By the way I'm not defending anyone here, I'm just saying the judge didn't misunderstand the issue, at least not by much.

Based on the non-standard nature of the no-cache tag, I would hope that maybe the industry itself will make it standardized. If there is an easy way for me (webmasters) to exclude pages if I don't want them to be cached, then the problem should be solved (technically); however, I do recognize the main concern that sites with high PR and presumably more capital (to fight lawsuits) will be rather immune from scraping and using my content.

jomaxx




msg:714369
 5:57 pm on Jan 26, 2006 (gmt 0)

If I'm the judge I'm wondering why the plaintiff is wasting my time with this. If he wants Google not to cache his pages, there's a far simpler remedy than launching a federal lawsuit. Thus the focus of the suit is less on copyright infringement and more on the plaintiff's feeling that he shouldn't have to take any action to prevent cacheing.

Maybe he's right, maybe not, but either way that falls far short of what could reasonably be called theft. Google are acting in good faith and providing a useful service to web surfers and it's not clear to me there's any harm being done.

[edited by: jomaxx at 5:58 pm (utc) on Jan. 26, 2006]

wildbest




msg:714370
 5:58 pm on Jan 26, 2006 (gmt 0)

>>How many people saw that material there, and /or felt no need to go to the original page becuase they saw what they needed on the Cisco router or whatever cache?

walkman, everyone that has the technical skills and wants to see that material there can do it!

BTW, that is exactly what NSA is doing spying on their own and foreign citizens! I bet they do caching without even bothering for your robots.txt file! :)

Brett_Tabke




msg:714371
 5:59 pm on Jan 26, 2006 (gmt 0)


> I'm just saying the judge didn't misunderstand the issue,
> at least not by much.

This is why I am so interested in getting my hands on a copy of the oral arguments. Apparently, the judge uttered some profound comments that need to see the light of day.

NoLimits




msg:714372
 6:00 pm on Jan 26, 2006 (gmt 0)

We really need to do our part as the online media and bring this case - and the facts surrounding the case to the public eye.

This could be a precident setting case.

Ignorance of the Judicial System to the workings of the internet is no excuse. If the judge/jury doesn't understand how things work, they need to throw this out and give the guy a fair trial.

I'm sure he was verbally trompled by well paid, articulate attorneys.

If things like this are allowed to stand - the golden rule will need to be re-written to:

"He/she who holds the cash makes the rules."

[edited by: NoLimits at 6:08 pm (utc) on Jan. 26, 2006]

Kufu




msg:714373
 6:07 pm on Jan 26, 2006 (gmt 0)

BigDave,

> As always, it is not appropraite to compare copyright issues with personal property issues, they are not comparable. Doing so just shows a lack of understanding about copyright.

They are of course not comprable; however, to draw that store and merchant parallel just helps illustrate what the judge meant in the ruling.

Still no good? :)

europeforvisitors




msg:714374
 6:13 pm on Jan 26, 2006 (gmt 0)

How many people saw that material there, and /or felt no need to go to the original page becuase they saw what they needed on the Cisco router or whatever cache?

Q: How many people see a page cached by Google and feel no need to go to the original page because of that?

A: Not many.

Q: Is the purpose of Google's cache to compete with the original site?

A: No. In fact, Google's frame above the cached page contains two links to the original page (one of which is a hotlinked URL). Google doesn't profit in any way from showing the cached image. The only discernible purpose of the cached page is to help the user and the Web site's owner if the latter's server is down when the user clicks through from the SERP.

Q: Does ruling that Google's caching is fair use mean that copyright laws are meaningless?

A: Of course not.

NoLimits




msg:714375
 6:20 pm on Jan 26, 2006 (gmt 0)

EFV - I'd love to see some statistics to back up those statements presented as facts.

How do you know how every surfer behaves? I often times use the Google cache to view pages that have been taken down for the PROTECTION of the site in question...

People shouldn't have to use a non-compliant tag to prevent another site from copying their content in its entirety. Not to mention that the Google cache often times misrepresents the actual quality of the page by showing broken images.

I don't know how the Google cache can't be called copyright infringement. I can't just go around the internet copying images and expect a link to the original authors works to suffice if they decide that I am making a profit from their images... why should Google be able to get away with it?

Brett_Tabke




msg:714376
 6:29 pm on Jan 26, 2006 (gmt 0)

> Q: How many people see a page cached

If only one sees it - that is grounds.

Most good seos track their competition from the cache. You only visit the site and leave tracks when you have too.

When MSN search started caching over a year ago, and entire horde of people ripped sites out of there (including WebmasterWorld). They never visited the site.

> Q: Is the purpose of the cache
> to compete with the original site?

No, it is to keep people on Google. One of the top crieteria for any successful site is "OST" (On Site Time) or as we affectionatly call it "stickiness".

It is also made to put Google advertisements in the visitors face and reenforce branding. Googles logo is the only color at the top of the page.

> Google doesn't profit in any way from showing the cached image.

Absolute nonsense EFV. Google clearly profits from the showing of the cached page. If you don't think so, please look up the word "branding".

wildbest




msg:714377
 6:32 pm on Jan 26, 2006 (gmt 0)

>>I can't just go around the internet copying images and expect a link to the original authors works to suffice if they decide that I am making a profit from their images... why should they be able to get away with it?

NoLimits, is your web hosting provider making a profit from cacheing your content? Why should they be able to get away with it?

BigDave




msg:714378
 6:32 pm on Jan 26, 2006 (gmt 0)

One other point to consider, before hoping for a rush to appeal you should understand precident and the appeals process.

Right now this is simply a district court decision. I can be used for precident by other judges, but they can alo choose to ignore it.

If it is appealed and upheld, then it become a binding precident in that circuit. The district judges in that circuit MUST follow that precident. It is still non-binding, though given more weight, in other circuits. If it goes to the supremes it is binding everywhere.

You have to take into account the cost of appealing and losing.

As for the appeal itself, it can only be made on points of law, not points of fact. What the judge said during oral arguments isn't going to make any difference, it is what is in the decision regarding his interpretation of the law that counts.

Most district court judges have become very adept at writing appeal resistant decisions. Even if one or two points of law are overturned, the decision will have a reasonable chance of standing.

You also have to take into consideration that if the case is overturned, it generally goes back to the same judge to retry. The appeals court does not rule on the case itself, they only rule on those points of law, the case is still decided by that same district judge.

Brett_Tabke




msg:714379
 6:32 pm on Jan 26, 2006 (gmt 0)

We aren't talking caching here wild best - what the search engines are doing, are republishing works.

NoLimits




msg:714380
 6:36 pm on Jan 26, 2006 (gmt 0)

Another point -

If it's okay for Google to cache your copywritten works UNLESS you use the nocache tag... then I, and 10,000,000 other websites can start caching all of the internets content and make up our own opt out tag.

Mine is going to be: no-steal

Now tell me... who is ready to include 10,000,000 different "opt-out" tags in their robots file?

- and wild, I PAY my web host to cache my site, and I CONTACTED THEM to initiate it. They profit from ME, not the people who WOULD HAVE been visiting my site - but instead returned to the SERP results, and had another "Google" branding image burned into their brain.

- and I don't want this to sound like an attack on Google, virtually all search engines are guilty of this form of (IMO) content THEFT.

[edited by: NoLimits at 6:40 pm (utc) on Jan. 26, 2006]

Chico_Loco




msg:714381
 6:38 pm on Jan 26, 2006 (gmt 0)

what the search engines are doing, are republishing works.

Dito.

A cache would be an exact replica, unmodified in any form.

Not only do Google add their name at the top - but they ask you to bookmark the page, on THEIR site - thus stealing the people that should end up at your site. That's re-publishing.

wildbest




msg:714382
 6:54 pm on Jan 26, 2006 (gmt 0)

Brett, you can not divide cache from republishing! Because everything on the Web is a copy - one, ten, hundred... thousand... and every copy can be considered publication of a certain kind! That is why copyright issues on the Web can not be looked at the same way as out of the Web! Making parallels there is off point.

Chico, you can not ask Google to index your content and allow people find you through organic searches AND in the same time ask Google not to cache your content, because technically it is not possible. You have to decide what's really important to you!

BigDave




msg:714383
 6:55 pm on Jan 26, 2006 (gmt 0)

then I, and 10,000,000 other websites can start caching all of the internets content and make up our own opt out tag.

No you can't. You would have to match identical conditions to those in this case. Do you meet all the Fair Use, DMCA safe harbor, estoppel and implied license from this case?

I doubt it.

Brett_Tabke




msg:714384
 6:57 pm on Jan 26, 2006 (gmt 0)

> A cache would be an exact replica, unmodified in any form.

and it would not be publicaly available to anyone and everyone.

wildbest




msg:714385
 7:04 pm on Jan 26, 2006 (gmt 0)

>>Not only do Google add their name at the top - but they ask you to bookmark the page, on THEIR site - thus stealing the people that should end up at your site. That's re-publishing.

Why people would go to Google if they would like to see what is on your site? Why don't they simply go to your site?

Chico_Loco




msg:714386
 7:10 pm on Jan 26, 2006 (gmt 0)

Why people would go to Google if they would like to see what is on your site? Why don't they simply go to your site?

Why would they leave Google (the almight power) when Google will happily republish it for the site in question?

People SHOULD just click over to the site, but Google provide a republished version - so they don't have to. Just because people choose to look at that republished version and/or find it useful does not make it morally correct, and in my opion it should not make it legal neither!

Snippets are fine since they constitute as "fair use", but reproducing a document in it's entirety is completely different.

europeforvisitors




msg:714387
 7:13 pm on Jan 26, 2006 (gmt 0)

People SHOULD just click over to the site, but Google provide a republished version - so they don't have to.

They have to click over to the cache, which is less intuitive (and provides a less attractive user experience) than clicking over to the site.

If you're really, really worried about this, why not simply put a "nocache" tag on your pages?

kaled




msg:714388
 7:17 pm on Jan 26, 2006 (gmt 0)

Clearly, this judge was either nobbled or he simply doesn't grasp the issues.

The comparison with mp3s is perfect.
If Google were to index and cache all the world's music and then argue that republishing was "fair use" they'd be laughed out of court.

Unless I've missed a recent development (always possible) the argument that you can use a noarchive robots meta to prevent caching is also nonsense. For one thing, Google caches non-html pages such as PDF files.

As I see it, two developments are required.
1) A definitive ruling on whether opt-in or opt-out is required.
2) A new standard to identify opt-in/out pages. Possibly a new http header such as Allow-archive: Yes/No.

Legally, as I see it, opt-in is the only defensible position, but with the suggestion above, it would be possible to rule, for instance, that after Jan 1st 2008, all cached pages must be removed for which opt-in headers were not present. This would give Plesk, etc. a chance to add the option to their control panel settings.

Kaled.

BigDave




msg:714389
 7:17 pm on Jan 26, 2006 (gmt 0)

You should all go read the decision, and then get pissed at Field.

This entire thing was a scam to set Google up for the lawsuit!

He actually allowed google to crawl in the robots.txt so that they would create "cached" links so that he could sue. He was encouraging Google to violate his copyright, with full knowledge of robots.txt, meta tags and google's behavior, specifically so he could sue them for a pile of money.

This is not some poor mom & pop website that didn't know any better.

You should be really unhappy if a garbage lawsuit causes precident to be set, making it harder for those with legitimate complaints.

wildbest




msg:714390
 7:18 pm on Jan 26, 2006 (gmt 0)

>>Why would they leave Google (the almight power) when Google will happily republish it for the site in question?

So, you prefer to answer my question with another question? Probably, to avoid the obvious point here!

Without Google, people that visit your cached page at Google would have NO idea that your site exist!

Chico_Loco




msg:714391
 7:23 pm on Jan 26, 2006 (gmt 0)

why not simply put a "nocache" tag on your pages?

I did that a long time ago - it's the principle that I'm worried about.

OK - If there's some reason why Google were set up in this case, then whatever, but this is still a very hot topic - why are Google getting away with republishing document like this when in almost any other field it would be considered illegal.

Philosopher




msg:714392
 7:35 pm on Jan 26, 2006 (gmt 0)

Why people would go to Google if they would like to see what is on your site? Why don't they simply go to your site?

This is exactly the problem. They don't HAVE to go to your site or my site because Google OFFERS them a different version. One with THEIR logo right at the top.

AND with a link to bookmark THEIR version of MY work?

Anyone who doesn't have a problem with that just doesn't understand the issue.

BigDave




msg:714393
 7:41 pm on Jan 26, 2006 (gmt 0)

I love this bit, it appears that Field (a lawyer) failed to even properly argue against Google's DMCA defense! He only argued against section 512(b) but their defense was based on sections (a)-(d).

Whether or not Google should have won that one will not matter on appeal! If he did in fact fail to properly argue it, then there are no additional arguments that he can raise on appeal. You cannot raise new arguments during the appeal if you had access to the information during the hearing.

This lawsuit was almost custom ordered by Google to ensure a win. Works with no commercial value, entrapment and bad lawyering. What a deal.

theBear




msg:714394
 7:46 pm on Jan 26, 2006 (gmt 0)

EFV

I think the tag you are looking for is noarchive.

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