26 January 2006

Less Than It Seems

As noted by Professor Patry, a judge in Nevada has determined that a plaintiff's lawsuit against Google for archiving his webpage must fail. The opinion itself, though, means far less than it seems to, but points to a serious attitude problem.

First, a quick review of the facts. Blake Field, a Nevada lawyer and longtime Google user, "decided to manufacture a claim for copyright infringement against Google in the hopes of making money from Googles standard practice [of caching search results]." Blake v. Google, Inc., No. 04cv413 (D. Nev. Jan. 19, 2006) (doc. 64), slip op. at 7. OK, so we have a naughty plaintiff. He then proceeded to shoot himself in the foot by giving an implied license to archive his webpage:

28. Field created a robots.txt file for his site and set the permissions within this file to allow all robots to visit and index all of the pages on the site. Field created the robots.txt file because he wanted search engines to visit his site and include the site within their search results.

29. Field knew that if he used the no-archive meta-tag on the pages of his site, Google would not provide Cached links for the pages containing his works. Field consciously chose not to use the no-archive meta-tag on his Web site.

Id., slip op. at 7–8 (record citations omitted; emphasis in original). This is bad enough; but the plaintiff shot himself in the foot with his complaint.

Field did not contend that Google was liable for indirect infringement (contributory or vicarious liability).

Id., slip op. at 9 n.8. Oops. As the judge correctly notes, when a third-party user clicks on Google's cache, Google is not the direct infringer; the third-party user is. Thus, Google could only be liable under a theory of indirect copyright infringement.1 The plaintiff didn't plead a theory of indirect copyright infringement. Civil procedure once again triumphs! Somehow, though, I don't think Judge Jones would have been too impressed even had the complaint been better constructed.

I have a lot more trouble with Judge Jones's discussion of implied licenses. Although I think he reaches the correct conclusion on these facts, his rhetoric isn't justified. Mere silence is not sufficient to transfer a license in the face of the Copyright Act's signed writing requirement, particularly when the authority upon which Judge Jones relies mostly did not interpret the current Copyright Act. However, his clear and concise discussion of license estoppel more than makes up for this minor flaw. The key point is that Field conducted his affairs in a way that a reasonable person would have believed in the license, and did so purposely… with the intent that the target person would so believe. This is a civil/copyright corollary of the entrapment defense in criminal law.

Judge Jones's fair use analysis also has some problems, but they are largely problems that he inherits from binding circuit precedent. I can't fault him for following the analysis in Kelly and Seuss v. Penguin; instead, I fault the analysis in those two cases. I would not have evaluated fair use at all, as it's an incredibly unclear doctrine, and judgment in Google's favor is clearly compelled by other aspects of the matter. In fact, this fair use analysis is dictum, although it will no doubt be cited by Netizens as "proof" that search engines are "always" fair use. It's nowhere near that simple.2 Judge Jones also notes that Google has a safe harbor available to it under the DMCA, even if all else fails, and castigates Field for his improperly framed and presented motion to deny that safe harbor. See Field, slip op. at 21–24.

Sometimes it's not hard facts that make bad law; it's a bad plaintiff (or bad plaintiff's counsel) that does that.

  1. You can ignore the sound of finger-buffing while noting that Judge Jones, as I've advocated, correctly called these "indirect" theories of infringement (instead of "secondary" as Justice Souter et al. did last spring).
  2. For the tip of the iceberg, you might try reading my analysis of the GooglePrint cases.