The court also found that Field should be estopped from asserting a copyright claim
based on the challenged behavior by Google. Field knew of Google’s allegedly infringing
conduct well before any supposed infringement of his works took place and knew “that Google
would automatically allow access to his works through ‘Cached’ links when he posted them on
the Internet unless he instructed otherwise.”^1554 Yet, he remained silent regarding his unstated
desire not to have “Cached” links provided to his Web site and intended Google to rely on this
silence knowing that it would. Google was not aware that Field did not wish to have Google
provide “Cached” links to his works, and Google detrimentally relied on Field’s silence.
Accordingly, the court found the four factors for estoppel present, and granted Google’s
summary judgment on the defense of estoppel.^1555
The court then turned to application of each of the four factors of the fair use defense.
Concerning the first factor, purpose and character of the use, the court, relying on Kelly v. Arriba
Soft,^1556 found Google’s search engine was a transformative use of Field’s works in that
Google’s presentation of “Cached” links did not serve the same functions to enrich and entertain
others that Field’s original posting of the works did. Rather, the “Cached” links allowed users to
locate and access information that was otherwise inaccessible, and allowed users to understand
why a page was responsive to their original query. The object of enabling users to more quickly
find and access the information they were searching for was not served by the original page.^1557
Nor did Google’s use of “Cached” links substitute for a visit to the original page. The court
noted that Google had included at the top of each listing a prominent link to the original Web
page. The “Cached” links were displayed in smaller font and in a less conspicuous location, and
there was no evidence that Internet users accessed the pages containing Field’s works via
Google’s “Cached” links in lieu of visiting those pages directly. Google’s status as a commercial
enterprise also did not negate the first factor weighing in Google’s favor, because there was no
evidence that Google profited in any way by the use of any of Field’s works. Field’s works were
merely among billions of works in Google’s database, and when a user accessed a page via
Google’s “Cached” links, Google did not display advertising to the user or otherwise offer a
commercial transaction.^1558
The court found that the second factor, the nature of the copyrighted works, weighed only
slightly in Field’s favor. Even assuming that Field’s copyrighted works were creative, the court
noted that he had published them on the Internet, thereby making them available to the world at
his Web site, thus indicating a desire to make his works available to the widest possible audience
for free.^1559 The court found the third factor, the amount and substantiality of the use, to be
(^1554) Id. at 1116-17.
(^1555) Id. at 1117.
(^1556) 336 F.3d 811 (9th Cir. 2003).
(^1557) Field v. Google, 412 F. Supp. 2d at 1118-19.
(^1558) Id. at 1119.
(^1559) Id. at 1120.