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Use of material fair, says court

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Judge Jones reasoned that Field had known in advance what Google would do if he posted stories on his website; he had known how to prevent the caching, but had not tried to prevent it – so Google was unaware that he did not want his web pages cached. As a result, "Google detrimentally relied on Field’s silence", wrote Judge Jones.

The judge then turned to the defence of fair use, finding that "Google’s use of the copyrighted material was a fair use".

He wrote: “Because Google serves different and socially important purposes in offering access to copyrighted works through 'cached' links and does not merely supersede the objectives of the original creations, the Court concludes that Google’s alleged copying and distribution of Field’s web pages containing copyrighted works was transformative."

This is an important element in establishing a fair use defence.

Nor was there any evidence that Google had "profited" from the use of Field’s works. The fact that Google was a commercial operation was not outweighed by the transformative purpose behind the search engine’s use of the web pages, according to Judge Jones.

The fact that Google had cached whole web pages, rather than parts of them, was not really relevant either.

"Google’s use of entire web pages in its cached links serves multiple transformative and socially valuable purposes. These purposes could not be effectively accomplished by using only portions of the web pages,"the judge explained.

In addition, Field had not demonstrated any market for his works that could be affected by the caching, nor in general terms, had the court seen any evidence "of any market for licensing search engines the right to allow access to web pages through cached links, or evidence that one is likely to develop."

Taking all these factors into account, together with the fact that Google had acted in good faith in providing the cache feature, Judge Jones found that Google had been making a fair use of Field’s material.

Finally, Judge Jones considered the question of the controversial 1988 Digital Millennium Copyright Act (DMCA), which provides a defence to service providers for the "intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider".

This was available to Google, said the Judge, because Google stores the web pages for around 14 to 20 days only, and this was "temporary" within the meaning of the Act.

Rights group the Electronic Frontier Foundation (EFF), which was not involved in the case, welcomed the ruling.

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Next page: Caching in the UK

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