A judge of the United States District Court has just handed down a verdict rejecting claims that the operation of Google’s ‘cache’ feature infringes copyright. (A cache is a temporary copy of a webpage stored in memory to preserve its state at a given point in time. Most usefully, it allows users to see what a page on the internet once looked like at the time it was cached.)

Mr Blake Field, a Nevada lawyer, sued Google when he found that portions of his website, www.blakeswritings.com, had been copied into cache and were accessible even after he had removed them from his website. Judge Jones held that, in failing to direct Google’s search bot not to index the material, combined with his posting the material in the first place, Blake’s conduct amounted to an implied licence permitting Google to cache the material. Click here for the full judgment.

The result is clearly correct — all the more so having regard to the facts of the case. In late 2004, Blake posted the copyright works on his website. He ‘gave them titles like “Good Burritos” and created stanzas that would make T S Eliot weep’:

There’s this burrito joint that’s not too far from here,
and they make a pretty good burrito.
It’s also a very inexpensive burrito, as their
cadillac [sic] entre [sic] is the most expensive at $4.10.
And for that, you get a whole lot of food.
A burrito as big as your head, even.

Having regard to their content, it is doubtful whether they were posted for any reason other than founding his cause of action in what was clearly intended to be a test case. Ars Technica’s analysis about sums it up:

Mr Field purposely created a robots.txt file that allowed robots to index the site, and he failed to use the ‘no-archive’ meta-tag even though he was familiar with it. He made no effort to contact Google about removing the cached version of his site from their servers. Then he sued them for US$2.5 million dollars in statutory damages — on works he had all but crapped out over a couple of days and had no intention of publishing.

Obviously, on these facts, there was little chance of success for the plaintiff. Anyone who permits the acts constituting infringement of their own works will be estopped from bring an action or in any case be deemed to grant a licence. But it does raise the question whether a bona fides plaintiff might raise a similar claim against the search giant — or indeed other web caching services.

Because Australian copyright infringement is predicated upon a notion of strict liability, it matters not that someone in Google’s position didn’t intend to infringe copyright, nor even do the acts constituting infringement. Further, although Google’s conduct may be permissible under the United States fair use defence, it may nevertheless sound in civil damages in other jurisdictions. It will be interesting to see how the Australian courts (and, more importantly, legislatures) grapple with this issue.