Cache me if you can

Eric Goldman has good — well, somewhat mixed, but more good than not good — trademark infringement news for search engines and other Internet players that use thumbnails:

This lawsuit squarely revisits the ground covered in the Field v. Google case, which Google won for 5 different reasons–including that anyone who posts content to the web knowing that search engines display cached copies impliedly licenses the search engines to do so. Here, the search engines apparently obtained the copyrighted works from Parker’s site (instead of from some third party infringing site), and Parker admits he knew of the cache function. As a result, Yahoo and Microsoft can claim an implied license for their cached copies.

However, implied licenses are a weak defense because they can be trumped by express restrictions (see, e.g., Ticketmaster v. RMG). As a result, Parker’s claim survives to the extent that Microsoft and Yahoo retained their cached copies after learning of his objection through the complaint filing. . . .

While Parker’s lawsuit (barely) lives to fight another day, overall this is another great opinion for search engines. Once again, courts are finding broad legal protection for basic search engine operations. This lawsuit also reiterated how pro se plaintiffs can be very helpful to an Internet defendant seeking to establish favorable low-cost legal precedent.

We love that last point!  We do have some trouble with this, though:

Parker also claimed that individual web users downloading the cached copies are direct infringers. However, the court extends the implied license to them as well. The court offhandedly says that the search engines lack both direct financial benefit from the cached copies and knowledge of the infringement, thus giving further reason to dismiss the secondary infringement claims.

We’re going to have to take a hard look at the “lack of direct financial benefit” argument.  It sounds dubious.  “Offhandedly” is never a good sign.

(Hat tip to Marty.)

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Ron Coleman

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