that the page should not be cached or archived. When the Googlebot visited a page, it would
search for meta-tags in the HTML of the page and obey them.^1548
The second mechanism by which Web site owners could communicate with search
engines’ robots was by placing a “robots.txt” file on the Web site containing textual instructions
concerning whether crawling of the site was allowed. If the Googlebot encountered a robots.txt
file with a command disallowing crawling, it would not crawl the Web site, and there would
therefore be no entries for that Web site in Google’s search results and no “Cached” links. The
court noted that the Internet industry had widely recognized the robots.txt file as a standard for
controlling automated access to Web pages since 1994.^1549
In the court’s words, Field decided to “manufacture a claim for copyright infringement
against Google in the hopes of making money from Google’s standard practice”^1550 of caching
by placing his copyrighted works on a Web site available to the public for free and creating a
robots.txt file on the site with the permissions set within the file to allow all robots to visit and
index all of the pages on the site, knowing that this would cause the Googlebot to cache his
copyrighted works. Field testified in his deposition that he had consciously chosen not to use the
NOARCHIVE meta-tag on his Web site. When Google learned that Field had filed (but not
served) a complaint for copyright infringement, Google promptly removed the “Cached” links to
all of the pages on his site.^1551
Field alleged only claims of direct copyright infringement against Google (and made no
claims for contributory or vicarious liability), asserting that Google directly infringed his
copyrights when a Google user clicked on a “Cached” link to the Web pages containing his
copyrighted materials and downloaded a cached copy of those pages from Google’s system
cache.^1552 As discussed in Section II.A.4(l) above, the court ruled that Google was not a direct
infringer because it lacked the necessary volitional act in responding with a purely automated
download process to users who clicked on the “Cached” links.
In addition, the court granted summary judgment to Google on its three defenses of
implied license, estoppel, and fair use. With respect to the implied license defense, the court
found that Field was aware of the industry standard mechanisms by which he could have
indicated a desire not to have his Web site crawled or cached, and that, with knowledge of how
Google would use the copyrighted works he placed on his site, by choosing not to include meta-
tags on the site that he knew would have caused the Googlebot not to archive his site, his
conduct should reasonably be interpreted as a license to Google for crawling and archiving the
site.^1553
(^1548) Id. at 1112-13.
(^1549) Id. at 1113.
(^1550) Id.
(^1551) Id. at 1113-14.
(^1552) Id. at 1115.
(^1553) Id. at 1115-16.