Caching, Thumbnails and a Fair Use Win

I am generally wary of relying too heavily on Google to fight all of the battles in copyright law, mostly because their interests and those of higher education don’t always seem very similar. But a fair use win for Google is usually good news for us as well, and the case decided recently (here is the decision in Perfect 10 v. Google) by the Ninth Circuit Court of Appeals is important on a number of points.

The Court of Appeals variously upheld and reversed parts of the previous district court ruling, but the upshot was that fair use was found for three specific activities: the routine caching that computers must do to display web pages, in-line linking and framing of web pages where the target page never resides on the server controlled by the web author doing the linking, and using thumbnail versions to index images found elsewhere on the web. None of these holdings are unique or new, but the Ninth Circuit does a nice job of explaining the technology involved and the reasoning behind its ruling. The “server test” used to find that in-line linking is not an infringement seems so simple and intuitive that one has to fear that other courts will try to complicate it. Linking, of course, is an important way that higher education tries to avoid infringement, so it is nice to be reassured.

As for caching, it seems amazing that we should have to be reminded, but the Court’s analysis is clear and useful:

[E]ven assuming such automatic copying could constitute direct infringement, it is fair use in this context… a cache copies no more than is necessary to assist the user in Internet use… Such automatic background copying has no more than a minimal effect on Perfect 10’s rights, but a considerable public benefit.

The only rain on Google’s parade is some language about secondary liability (liability for contributing to direct infringement by someone else) that could pose problems for Google in that part of the present case, which was remanded to the lower court, and in the future. An nice explanation of the potential harm in this part of the opinion is available here on Prof. Wendy Seltzer’s blog. For higher ed., however, this case is a nice reminder of principles that are necessary and ought to be obvious.

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