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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...]

 

BigDave




msg:714484
 5:12 pm on Jan 30, 2006 (gmt 0)

Whether something is published or not has a LOT to do with copyright. Publishing is not required to receive copyright, but it does change the standing of the work. In some ways you gain protection when it is published, and in some ways you lose protection.

colin_h




msg:714485
 5:21 pm on Jan 30, 2006 (gmt 0)

If I take a printed flyer and put it in my shop window, am I beaching copyright if I haven't ascertained that the person asking me to display it was the originator of the document?

BigDave




msg:714486
 7:57 pm on Jan 30, 2006 (gmt 0)

If I take a printed flyer and put it in my shop window, am I beaching copyright if I haven't ascertained that the person asking me to display it was the originator of the document?

Probably not. But if you read that flyer aloud to a non-private gathering then you probably are. Remember, the rules are different for different media.

Playing a DVD for yourself, or for a private gathering is not a copyright infringement. Renting or loaning out that original is also okay under the first sale doctrine. Playing that DVD as part of a public performance is not okay.

TV stations cannot just go down to the local blockbuster and rent a movie to show. Radio stations have to pay additional royalties when they play music. The same goes for business that play music over a central sound system or have live performances.

BigDave




msg:714487
 12:36 am on Jan 31, 2006 (gmt 0)

even if many pontificate like US law applied planet wide

But when the thread is about a case in Nevada, the ONLY law that counts is US law.

Leosghost




msg:714488
 12:56 am on Jan 31, 2006 (gmt 0)

Ok so maybe google would like to only cache the websites that reside on Nevada servers ;)
..
As opposed to what they have always done which is to cache those on servers in the entire world ..

Where their version of what they interpret as copyright law has always been in conflict with local laws and where they have flouted those laws since day one ..

Google is a registered business in Ireland and Switzerland to name but two other juristictions and as such is obliged to and should be respecting EU law with relation to copyright ( they are not doing so ) ..

An American companies spurious legal arguments and proprietory "opt out" tags and other doubtfull practices should not be imposed upon American websites ..and it's subsiduaries should not try to do the same elsewhere ..

Microsoft have learned this the hard way in the EU ..

Google may well be the next to be challenged and brought to heel to obey legislation as opposed to purely doing what suits it's bottom line ..

Your sidestepping of the wider issue does you no credit ..

jomaxx




msg:714489
 1:24 am on Jan 31, 2006 (gmt 0)

Quite a rant.

BigDave




msg:714490
 1:44 am on Jan 31, 2006 (gmt 0)

Then sue them in those countries and start an appropriate thread.

This thread is about an american lawsuit, against an american company, by an american with a site hosed in the united states.

And somehow we are hijacking it by talking about american copyright law?

File your suit in france, and then the french law will count.

By the way, it doesn't really matter where the websites are hosted. If google were simply and american national company instead of a multi-national, the ONLY law that would apply to them would be US law. That is where the copies would be made, and where they would be hosted.

Leosghost




msg:714491
 2:01 am on Jan 31, 2006 (gmt 0)

If google were simply and american national company instead of a multi-national, the ONLY law that would apply to them would be US law. That is where the copies would be made, and where they would be hosted.

but they arent just an American company ..

so other laws do apply ..

and they do keep cached copies on their servers outside the states ..

of course if you think that only Americans should post on the subject ..and only as it affects American sites then I suppose Brett will have to change the site here to "continentalUSAwebmastersonly" ..

BTW ..I would not wish for french law to be the decider in this either ..you are confusing where I live with where I am from and which legal system I prefer ..

europeforvisitors




msg:714492
 2:06 am on Jan 31, 2006 (gmt 0)

even if many pontificate like US law applied planet wide

Most of the general copyright discussion is relevant to any of the 160 countries that support the Berne Convention for the Protection of Literary and Artistic Works.

Leosghost




msg:714493
 2:10 am on Jan 31, 2006 (gmt 0)

I presume also that all your comments were only related to the laws of copyright in Nevada and not those pertaining to the rest of the USA or International law ..and that of course you prefixed each post with that "caveat"..

Google does this everywhere and International law ..not merely that of one single state in the US has to be the system applied ..or there is total justification for anyone to set up a search engine in any country or province ..such as the "Stans" that brett refers to in the WebmasterWorld robot text blog ..and we should all ( including big dave ) not complain or comment if our sites get scraped , cached or copied and framed with adsense on them ..

It's like when you try to apply your personal interperatation of US fair use to everyone else everywhere else in the world ..people do have websites , run searches and agree legislation with the US from outside the USA you know ..

you cant decide the rules for everyone else ..

EFV ..you need to read a lot more closely the Bern convention .there are massive differences ...and to reread a lot more of big daves old "fair use" as defined by US courts ..and how he never even acknowledges that there is life and other legislation outside of the USA that does not subscribe to his definition of "fair use" ..

presumably you would not mind if I stripped out the ads and the adsense from your site ( which wouldn't leave much per page ) and then translated it or "reveiwed it" and put up adsense on the "reveiw" ..quoting "fair use" a la big dave ;) ..or cached it and branded it on the top with my logos and so no -one needed to go to your site to read your text ;)..

BigDave




msg:714494
 2:50 am on Jan 31, 2006 (gmt 0)

Leosghost, please don't put words in my mouth, because every time you do you get it totally wrong. You got it completely wrong then, and you are getting it completely wrong now.

I in fact aknowledge the appropraite copyright law for the case, in EVERY CASE under discussion. You on the other hand keep complaining every time there is discussion about a US case that we are only discussing US law.

Your complaining in a post is the ONLY reason that it came up. No one else mentioned international law before that point, yet somehow you became bothered that we were only discussing the law that actually applies to this case.

In that very Fair Use discussion you mention, I seem to recall where I showed you that you were wrong about UK copyright and you suddenely jumped to French law.

Give it a break. The law IN THIS CASE is United States Title 17. That is the law that applies in Nevada, it is the law that applies in the (th Circuit, and it is the law that applies in the entire United States.

You are bothered that we are not referring to the EU laws in a discussion about a United States case, yet you don't want to be bothered to learn the law that applies.

Give it a break.

For someone that claims to be such an expert on copyright, I would highly recommend that you get familiar with it (your last post makes it obvious that you are not) or follow your own advice and not post on an issue that you are not familiar

steveb




msg:714495
 2:56 am on Jan 31, 2006 (gmt 0)

"with a site hosed in the united states"

This thread is hosed.

Key_Master




msg:714496
 4:00 am on Jan 31, 2006 (gmt 0)

Is there anybody in this forum that believes that any file indexed and archived by Google, is the property of Google?

Caches generally contain an unmodified copy of the original. The Google archive is modified and branded and certainly doesn't qualify as a cache. It even contains a bookmark link that points back to Google and not the original owner.

If that ok with you, then surely any site that archives your content in a similar fashion and republishes it under their own brand should be perfectly acceptable to you.

If you don't believe that search engines archiving your site hurts you, legalities aside, consider this. In the future, search engines will data mine their archives to produce advertiser supported, content rich articles to appease their visitor's search queries. Each article derived from information scraped from potentially thousands of archived pages and pieced together by artificial intelligence software. Your site won't be receive credit for it's contribution and your site won't benefit from the revenue collected from the ad revenue. You may even lose a potential visitor.

2by4




msg:714497
 4:23 am on Jan 31, 2006 (gmt 0)

Hey bigDave, do us all a favor and tell us your qualifications. Do you practice copyright law actively as an attorney? Or are you an attorney with an interest in copyright law, but who doesn't practice it? Or are you a legal assistant type who likes to present themselves as a practicing attorney? Or are you a webmaster who may have studied some law in the past and now likes to act like he knows all about copyright law? Or do you have friends who are copyright lawyers but aren't really involved in the field yourself, which I seem to remember was the case, though I could be wrong.

Since you like to talk as if you have a great deal of authority on this topic, I'd be very interested to know just why I should take anything you say as anything more than simple opinion flavored by some fact and background knowledge.

Since you are guaranteed to be jumping into any copyright thread presenting yourself as if you are a practicing expert in the field, it would be nice to know for once and for all just what your actual expertise in this area is.

No need to get specific, just a general answer would be nice. You'll have to pardon my scepticism here.

Of course the simple fact of being an attorney doesn't mean much either, but at least it would give us some idea.

kaled




msg:714498
 12:33 pm on Jan 31, 2006 (gmt 0)

We can argue until the cows come home what is and what isn't fair use. Suffice it to say, that many people have a hard time accepting the presentation of an entire page with a Google/Yahoo/MSN logo, etc. at the top constitutes fair use.

In point of fact Google themselves seem to accept this - they offer an opt-out mechanism, and this was, indeed, cited by the judge in the Nevada case.

However, the opt-out mechanism is flawed in principle and in implementation in that it only applies to html files, yet Google archives other formats such as PDF and TXT files.

I, like many other people, feel that it is only a matter of time before Google either changes this policy voluntarily or is forced to do so by the courts.

Kaled.

otech




msg:714499
 12:52 pm on Jan 31, 2006 (gmt 0)

This topic got way too heated for me to continue back on page 2 when I was arguing about pretty much the same thing as is still being argued on this page!

It was 4am in the morning and I managed to get engaged in an argument with a few people across the world! What a wonderful age we live in!

Kaled, I feel your post is a great summary to this debate;

Enough people (seems like at least 40-50% on this topic in this forum) seem to feel there is a copyright violation by Google re-publishing (displaying/storing/showing whatever) other peoples webpages from their site.

That is enough to guarantee that Google will be before more courts in the future (and in different countries) and therefor only time will tell what will happen - though if they want to maintain the whole 'don't be evil' theme then pissing off 50% of their listings webmasters surely wouldn't fit the bill ;-)

Has anyone got anything new to bring to this debate?

europeforvisitors




msg:714500
 3:56 pm on Jan 31, 2006 (gmt 0)

That is enough to guarantee that Google will be before more courts in the future (and in different countries) and therefor only time will tell what will happen - though if they want to maintain the whole 'don't be evil' theme then pissing off 50% of their listings webmasters surely wouldn't fit the bill ;-)

Just because 50% of the participants in this thread are upset by the Google cache doesn't mean 50% of site owners in general are upset. And of those who are are Web-savvy enough to even be aware of the cache and have an opinion on it, are there any who don't know they can opt out with a simple tag?

That's the crux of the matter. And until there's a groundswell of protest or a stampede of angry Webmasters armed with lawyers, Google will continue to assume (not unreasonably) that most Webmasters believe its cache is "fair use" that benefits both the Web site and the public.

otech




msg:714501
 4:18 pm on Jan 31, 2006 (gmt 0)

Well, what does anyone think about the 'Send to' button added to the new Google Toolbar? [google.com...]

Is this a breach of copyright in anyones mind, considering it is not blocked by any opt-out tags and they get more Gmail users and advertising revenue from persons sending your content?

It requires users are signed in and MUST have a gmail account for it to work, which will then ensure you most likely get Googles adsense adds placed around the outside at some point. (In fact half the features on the toolbar need you to be signed in with a google account of some sort).

This one REQUIRES you have gmail as the sending account (meaning more signups from people wanting to email your content?)... any opinions?

EFV - I have given up arguing over this matter, and simply take it that there is obviously passionate people on both sides of the fence in this debate.

I made my opinions clear earlier and am not going to go round and round in circles... I think it will wind up in court again. PS My mother knows of the cache and she is far from websavy ;-)

europeforvisitors




msg:714502
 5:14 pm on Jan 31, 2006 (gmt 0)

I made my opinions clear earlier and am not going to go round and round in circles... I think it will wind up in court again.

Only if unhappy Webmasters do something besides talk about it. :-)

Piet59




msg:714503
 11:33 am on Feb 1, 2006 (gmt 0)

otech:
I made my opinions clear earlier and am not going to go round and round in circles... I think it will wind up in court again.

europeforvisitors:
Only if unhappy Webmasters do something besides talk about it. :-)

It really looks like they are going to do so: the World Association of Newspapers (representing 18.000 newspapers worldwide) is researching how they can make Google and Yahoo pay for the content they are stealing.

When they go to court (and I really hope they will) it sure won't be in Nevada...

A good way to act would be: sue them in every country or deparment where they are stealing content, because that's the crime scene.

I don't understand why people keep mentioning opting-out: I just saw a brand new Mercedes and it didn't have a special sign on both the front and back side saying "don't ride this if it isn't yours, not even when you really really like it". I have asked Mercedes-owners to put such a sign on their car to prefent me stealing it. Do I now have the right to take every Mercedes without that special sign?

diddlydazz




msg:714504
 1:04 pm on Feb 1, 2006 (gmt 0)

wow, what a *lively* thread ;o)

My opinion FWIW

This will end up in more courts, it is far from over (although it may be in Nevada).

The way I would like to see all this end?

In order of preference:

Make it opt-in not opt-out period (the best option IMO)

or.....

don't let the public see it.

or.....

get rid of the google/msn/yahoo logo (as that logo sitting there is branding, no 2 ways about it), and google should get rid of the bookmark link as IMHO it is a bit too much.

DISCLAIMER
no im not a lawyer, not related to one (AFAIK), the only lawyers i have contact with are the ones I have to pay, oh, and my dog never studied copyright law nor has he felt the need to.

But I have sent out 100's of C&Ds in my time!

Dazz

europeforvisitors




msg:714505
 3:40 pm on Feb 1, 2006 (gmt 0)

I just saw a brand new Mercedes and it didn't have a special sign on both the front and back side saying "don't ride this if it isn't yours, not even when you really really like it". I have asked Mercedes-owners to put such a sign on their car to prefent me stealing it. Do I now have the right to take every Mercedes without that special sign?

No, because joyriding isn't protected by Fair Use.

theBear




msg:714506
 3:54 pm on Feb 1, 2006 (gmt 0)

Might I point out to all you wonderful folks that a cache copy of electronic data (ie, program code) is only fair use because it is required for the the actual operation of said system.

In this particular instance the cached copy of a web page is:

1: Not required to be publicly avialible for the web page to function.

2: Not required to be publicly availible for Google's system to function.

3: Not required to be publicly availible for Google to function as an ISP.

4: Not required to be publicly availible for Google to function as a hosting provider.

IMO the Judge got it wrong. The website owner also didn't exactly help in the matter.

I have no doubt that the matter will be back in court somewhere.

Piet59




msg:714507
 4:00 pm on Feb 1, 2006 (gmt 0)

I just saw a brand new Mercedes and it didn't have a special sign on both the front and back side saying "don't ride this if it isn't yours, not even when you really really like it". I have asked Mercedes-owners to put such a sign on their car to prefent me stealing it. Do I now have the right to take every Mercedes without that special sign?

No, because joyriding isn't protected by Fair Use.

Republicing whole pages/articles isn't either. At least not in civilised countries. If I publish an article you may use quotes from it (put a snippet and a title in your search engine or on your web page, that's fair use) but you're sure not allowed to republish the whole thing. You'll have to ask me first, and I tell you under which conditions (financial and otherwise) I will or will not allow you to do so.

europeforvisitors




msg:714508
 5:18 pm on Feb 1, 2006 (gmt 0)

Republicing whole pages/articles isn't either. At least not in civilised countries. If I publish an article you may use quotes from it (put a snippet and a title in your search engine or on your web page, that's fair use) but you're sure not allowed to republish the whole thing.

It isn't that simple, and the copyright owner doesn't get to define what "fair use" is. That's up to the courts. And for now, Google and other SEs that use caching obviously feel comfortable with the opinions of their own legal experts.

It's worth noting that no entrepreneurial class-action attorneys have tried to drum up interest in a lawsuit about caching. This doesn't necessarily mean that Google is in the right, but on a strictly practical level, it may mean that Google doesn't have too much to worry about.

[edited by: europeforvisitors at 5:26 pm (utc) on Feb. 1, 2006]

jomaxx




msg:714509
 5:23 pm on Feb 1, 2006 (gmt 0)

IMO it's a bit presumptuous to assert that the judge "got it wrong", but why stop there? Maybe the legislators who drafted the US Copyright Act got it wrong. Maybe the Berne Convention itself is incorrect.

kaled




msg:714510
 7:31 pm on Feb 1, 2006 (gmt 0)

theBear said
IMO the Judge got it wrong.

jomaxx said
IMO it's a bit presumptuous to assert that the judge "got it wrong"

It is NOT presumptuous to express an opinion, and certainly not when that opinion is shared by many others.

Does anyone have anything constructive to say that hasn't been said already?

Kaled.

theBear




msg:714511
 7:57 pm on Feb 1, 2006 (gmt 0)

jomaxx,

It would not be the first time that a Judge called it wrong.

I was kind enough to state that it was an opinion on my part.

I also stated why I thought that fair use did not apply.

The ruling was on an exteremely narrow basis and is still subject to review. Let's let it play out and then see.

I happen to admire this particular Judge for other reasons outside of this case.

kaled,

;-)

BigDave




msg:714512
 7:59 pm on Feb 1, 2006 (gmt 0)

Does anyone have anything constructive to say that hasn't been said already?

Oh yes, something quite interesting. Something that would explain the thoroughness of the decision, and something that might give an ever-so-tiny ray of hope to those that want this decision overturned.

But since 2by4 seems to think I'm not qualified to give my opinion, I think I'll keep my research to myself.

It's basic case research, so I'm sure that someone else (such as 2by4 or leosghost) will come up with it. It just requires a few searches and some simple critical thinking about how appeals work.

theBear




msg:714513
 8:05 pm on Feb 1, 2006 (gmt 0)

Appeals are on points of law not fact and the procedure followed in the court that rendered the ruling being appealed.

Will that do for starters?

2by4




msg:714514
 8:18 pm on Feb 1, 2006 (gmt 0)

<<< But since 2by4 seems to think I'm not qualified to give my opinion, I think I'll keep my research to myself.>>

No bigDave, I asked you what your qualifications were. I asked pretty clearly too. In legal matters it's very different to have opinions, educated opinions, and real working knowledge of the facts based on personal experience. If you'd spent those typing moments responding positively instead of defensively, it would have been more productive. It's my experience that more professionally competent a person is, the less defensive they are. I see this all the time with web designers and developers. I assume the legal profession is the same.

As it is, I still have no idea why I should pay your words any special attention. I've seen you say things I'd question pretty seriously in the past, legally and in other ways, so just having familiarity with the terms isn't very convincing, sorry.

The problem I have is that you don't seem to really grasp the larger issues at stake in these copyright questions, you just focus on the details. That's what makes me think you don't actually do this for a living. Anyone can read up on facts and rulings.

thebear, when I read the ruling, its looks to me like Field created the impression that he was doing this for money. That was a huge mistake, that was pointed out in the first paragraphs of the judgement. If Field was trying to do something smart, he failed completely. I think that's what that judgement was primarily about.

Creating the appearance of setting a deliberate trap so you can put in a quarter million dollar claim, then representing yourself, just looks like a lawyer being a money grubbing scumbag. Even if that wasn't his intention, it seems pretty clear from the ruling that that was the perception the lawyer created in the court. Nothing the lawyer did did anything to create a more positive impression, that's for sure.

We'll see better crafted cases on this in the future, hopefully they will be a bit smarter in how they proceed, and avoid the mistakes Field made, which shouldn't be that hard to do. First of all, don't sue for money, sue for principle, the classic $1 for example. MS avoided lawsuites in its early days because the system couldn't keep up with the technology in the laws, still can't, but finally the state had to start stepping in to curb the abuses.

The principle they should fight for is clear: if you copyright your work, it's copyrighted. If a commercial enterprise offers that page view as part of its commercial product, which google does, as an added service that is, it's not fair use. And I'd guess, if a smart lawyer tries this again, the entire robots.txt argument would be avoided completely, forcing google to justify its use of copy protected material. Opt in that is. That would be an interesting case.

I'm not a lawyer, to make that clear. But you don't have to be a lawyer to understand certain basic principles, like this one: the system makes laws that satisfy its principles. The supreme court ruled that discrimination was legal when that was socially acceptable, and it ruled that it was illegal when it became socially unacceptable. The law is a tool, it's not the end of the question.

It's the principle of what google is doing and how they are doing it that should be challenged, not little side issues. Think Rosa Parks for example. Not that what google does is in the same level of seriousness of course, it's just a dumb search engine that works fine.

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