Snipets on Implied License

The court had no problem finding that users clicking on the ‘Cached’ link did not constitute direct copyright infringement because there was no volitional act on the part of Google at that point in the process. The court then went into quite gratuitous depth about how even if it had ruled otherwise on this issue, each of the defenses proffered by Google would have been quite sufficient to avoid liability in any case.

The ruling on Implied License is important because it lays the groundwork of a common law foundation for a theory that has been floating around in primarily academic and policy circles. In academic circles, the theory merely reflects common sense in acknowledging that the Internet doesn’t work unless users are deemed to have an implied license to access web pages posted on the Internet. Since web pages are technically copied to a user’s computer for display on the user’s computer when that user accesses a web page, anyone who accesses a web page without authorization would be guilty of direct copyright infringement.

In policy circles, the Report of the Working Group for the National Information Infrastructure (the “White Paper” which laid the groundwork for the Digital Millennium Copyright Act), made occassional reference to the concept of implied license: “[A] defendant may successfully assert that the activity is non-infringing due to the existence of a license—statutory, negotiated or implied.

 

All of these defenses are available in the NII environment. For instance, one or more of these defenses, such as fair use or the existence of an implied license, may be successful where a copyright owner’s posting to an automatic electronic email distribution list is reproduced and distributed to the subscribers of the same listserv in connection with a response to or comment on the posting.”

  There are two dangerous aspects to this particular ruling. The general theory of implied access is that the act of posting a web page on the Internet constitutes the granting of the implied license. In this case, Field knew of the opt-out options, and chose not to avail himself of those options. It was this knowledge that formed the basis for the implied license.