The safe harbor for system caching

Section 512(a)-(d):

Provides for four different types of safe harbor for Online Service Providers. In this case, Google was claiming immunity under section . This safe harbor provides that “[a] service provider shall not be liable for monetary relief…for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider…”

 

Google does not make “intermediate and temporary storage of that material. In Ellison v Robertson, AOL was storing Usenet postings for 14 days, which is clearly analogous to Google's caching of 14-20 days, and such caching was deemed temporary. Additionally, the work must be transmitted from the creator to a person other than himself, at the direction of the other person. In this case, Field transmitted the work to the GoogleBot at Google’s request, thus satisfying the requirements of 512(b)(1)(B).

 

 In addition to the four part test, the Court threw in a ‘Good Faith’ fifth factor. The Court noted that the Copyright Act authorizes courts to consider other factors than the four non-exclusive factors typically referenced. In this case, the Court considered whether Google operated its cache in good faith, and finding that it did, awarded Google bonus fair use points.

 

Finally, Google’s storage of web pages is carried out through “an automat[ed] technical process” and “for the purpose of making the material available to users…who…request access to the material from [the originating site].” This is a two step process in which a user who clicks one of the hyperlinks and finds the site unavailable can return to the result set and access the website through the cached link.