High stakes for the ‘Net in Nevada

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

At first blush the case looks like a simple one. Attorney Blake Field created a Web site, on which he posted a bunch of his copyright articles, some of which are 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 site.

As one might expect, Google’s robot found the site, indexed it and made cache copies of the files back at Google. Google makes a cache copy of all pages so it can check them when a user does a search. Google also makes the cached copy retrievable by its users. All they have to do is click on the “cached” link presented for each of the pages that Google finds match the search strings. Google highlights the search strings on the version of the cached copy it returns to the user.

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 file, but he also did not include the no-archive metatag in the HTML of the pages, even though he knew that Google would honor such a metatag and not cache the page.

Nevada District Court Judge Robert Jones saw through the entrapment effort and tossed out Field’s request for $2.5 million, because Field knew how to tell Google “no,” but purposefully decided not to do so. But Jones did not stop there, as his judgment carefully explored whether Google’s making the cache downloadable by its users violated copyright law.

He concluded that it did not, for a number of reasons. Jones ruled that a user clicking on a URL was not an act by Google that might make the company liable and that Field had given Google and others an implied license to the material when he put it up for open access and did not try to limit that access. He additionally ruled that:

* Google’s downloadable cache was an example of fair use under U.S. copyright law, because it served purposes other than that of the original (for example, highlighting search terms and permitting access to material on an unreachable server).

* Google was not making money from the cached version.

* Google did not try to fool the user into thinking the cached version was the original and did not change the market for the original, free work.

These rulings are important for the ‘Net, because they let search engines continue to be a valuable resource without a fear that their operation is illegal. Most Web sites want the attention of Google and its brethren. Those that perversely think anonymity and making it so a site cannot be found are the way to achieve success can easily tell the robots to pass on by. It also removes a tool for those that would, such as The SCO Group, destroy huge societal value for personal gain.

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