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Google "Cache" Not Copyright Violation

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

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WebmasterWorld Administrator brett_tabke is a WebmasterWorld Top Contributor of All Time 10+ Year Member Top Contributors Of The Month

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


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):

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

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<<< 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.

8:58 pm on Feb 1, 2006 (gmt 0)

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No bigDave, I asked you what your qualifications were.

Yes, and you only asked for *my* qualifications, no one elses. Yes, I have posted my qualifications before, and I'm not going to post them again.

If you choose to not pay any heed to what I write, that is fine with me.

I also doubt that you have found many places where what I have posted has been wrong. You may have disagreed with what I posted, but it is very rare that I have been wrong on copyright issues.

As I pointed out earlier, in 2004 I suggested that there were certainly ways that a court could find that Google's cache was legal. I never said that they *would* find that way, I just presented some arguments. Many of those arguments matched what was in this decision. If I have such a record of being wrong, then jst ignore me.

9:14 pm on Feb 1, 2006 (gmt 0)

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

Yeah, you are headed in the right direction.

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

Now what case could that be? Unless you are in Nevada, there is only one case that matters, and it's a copyright case as well. Read some of the early discussion on that case and you might even get an idea of why I think there might be a chance to overturn this decision on copyright (though it will be almost impossible for him to get the estoppel part of the decision overturned)

9:22 pm on Feb 1, 2006 (gmt 0)

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Well I'll not get into a discussion about estoppel or the possibility of unclean hands on the part of either party.

But as for the other case, do a bit of research over the last couple of years for the cases he has handled,

Then intersect that with Red Hat, IBM, Dalmier Chrysler, and Novell.

10:28 pm on Feb 1, 2006 (gmt 0)

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If Google were ever forced to make the cache opt-in, I wonder what might be offered as an incentive (or as a disincentive to not opting in).

The cache does make Google's search results more useful to searchers, so it wouldn't be unreasonable for Google to provide some benefit--however modest--to Webmasters and publishers who chose to allow caching.

12:40 am on Feb 2, 2006 (gmt 0)

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For me and my clients, the benefit is being included in Google's results. They are (arguably) the largest fish in the search engine sea at this point, and to be nowhere in their SERPs is to have a lot fewer visitors.

For me, the technology G uses (including the cache, the toolbar, the search appliances and all the other stuff) benefits my business without a single dime coming out of my budget.

The cache may be an issue with regard to older pages remaining available beyond what I would have instructed them to do, however the trail of income continues, cache or not. Frankly, without some numbers about how often the cached link is selected, it's difficult to argue either for or against its continued use.

Regardless, so far they haven't kept a single customer from reaching me, and have never diverted a potential customer for their own profit as a result of viewing a cached page.

They decide to go for opt-in? Cool. Opt me in.

2:18 am on Feb 2, 2006 (gmt 0)

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ah, bigDave... why am i not surprised? I like to be optimistic about people, but why bother?

That figures, ok, I'll completely ignore what you have to say in the future. The reason I asked only you is because only you put yourself forwarda as an expert in the legal aspects of this topic. No one else in these threads does that. See Leosghost's comments on the size of fish and the ponds they chose to inhabit.

You are the reseller of copyright topics, in other words. Tha main difference is that reseller does a pretty good job of following datacenters, and does not misrepresent his own qualifications or abilities. Plus he's just so darned cheerful.

Since it's apparently too difficult for you to simply type the few words that an answer would require, I'll assume you are exactly what I think you are, or some version of that. I thought of a few more this afternoon, which I won't share due to TOS. And no, I have no interest in digging up every thread you've ever joined in hopes of finding the answer, are you kidding? You're kind of flattering yourself there, sorry. I'm not that interested. As I said, I do have a vague memory that you said you don't do this, but you have friends that do. Sometimes I wonder if those friends work for google to be honest, but it's just a thought.

Nobody else in this thread is suggesting that they have some higher grasp of the question, it's just educated or uneducated opinions. Only you make this suggestion, and you always make it. It's kind of like how googleguy posts, you know, he says he's from google, so what he says about google is given more weight than if, say, you, said something about google. However, if you don't want anyone to treat your opinions as worth more than opinions, I guess you're right to not answer a simple question about why we should take your opinions as worth more than anyone else's opinions. Thanks for clearing that up. Since you could by now have typed in the few words in each response above... I can think of no reason a qualified person would be shy about stating their qualifications. None. If I was posting in a thread about a certain complex topic and somebody asked me why I knew what I knew, how I knew it, etc, I'd answer them. Unless, that is, I really didn't know much at all. Then I might try to sidestep the question and change the subject.

Anyway, this particular thread, some interesting points raised, even you raised one, which was a refreshing change. Your belief that you haven't been wrong, I don't know, read what I wrote about big pictures again. You can be right about details but totally wrong about big pictures. You'd be the last person I would consult if I had real legal problems with copyright protection because of the big picture thing, I'll leave it at that. Inability to see large pictures, not a good thing in professionals, but very common I think.

3:02 am on Feb 2, 2006 (gmt 0)

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I can think of one qualification that BigDave has...

Despite the fact that our opinions have differed from time to time, BigDave has never triggered my BS detector. Given that I worked part-time in an ice rink for ten years, I can say with confidence that my BS detector is very highly tuned.


5:21 am on Feb 2, 2006 (gmt 0)

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He's triggered mine, repeatedly. But it's always been a mystery to me exactly what is triggering it. I have suspicions, but it's not worth it to figure it out. It's a subtle type trigger however, it's more of a meta thing, though meta errors will almost always reveal themselves in micro mistakes.

Anyway, don't want to drag the thing totally offtopic, just like to know just who the people who put themselves out there as authorities actually are. One thing I've learned over the years is that it is very common for people to create fictionalized identities for themselves online. Sometimes slightly fictionalized, sometimes very. At some point it's useful to know. For example, we all pretty much know who googleguy is, that's helpful. I know who reseller is, more or less anyway, that's helpful. And so on.

Law is an odd thing though, it's not like the other professions. And opinion about law, that's an odd thing, if someone's opinion agrees with your's, there's a tendency to like it. But that doesn't mean it's correct, even if the details appear to be so. Of course, I'd guess that any good lawyer would easily have convinced me, since convincing people is what they theoretically do for a living. I have a lot of respect for professional competence, even when I loathe the profession.

Anyway, it's neither here nor there, in any greater scheme of things this is not something that is going to keep me awake at night, I'm definitely not wasting any more time on worrying about this particular question. Would have been nice to know, but I guess it really doesn't matter..

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