The court ruled that, as a result of the plaintiff’s failure to employ the robots.txt protocol
on his web site or to send the defendants a takedown notice, the defendants had an affirmative
defense of implied license for acts of caching prior to the lawsuit. From the plaintiff’s silence
and lack of earlier objection, the defendants could properly infer that the plaintiff knew of and
encouraged the search engines’ activity. However, the court refused to dismiss entirely the
plaintiff’s count for direct copyright infringement because the defendants had allegedly
continued to display the plaintiff’s works even after the filing of the lawsuit. The court noted
several decisions holding that a nonexclusive implied license can be revoked where no
consideration has been given for it, and initiation of a lawsuit itself may constitute revocation of
an implied license if there was no consideration for the license.^1576
However, the court dismissed the plaintiff’s counts for contributory and vicarious
copyright infringement on the part of the defendants based on allegedly infringing copies of the
plaintiff’s content made when an Internet user’s browser stored a temporary copy of a file that
was necessary for the user to view the web site. The court ruled that, by publishing his works
online with no registration requirement or any other access measure taken, the plaintiff had
impliedly authorized Internet users at large to view his content and, consequently, to make
incidental copies necessary to view that content over the Internet. And even if search engine
users did directly infringe the plaintiff’s copyright, the court held that the plaintiff had not set
forth any plausible allegation that either defendant financially benefitted from such infringement.
Nor had the plaintiff alleged that either defendant had knowledge of any third party’s
infringement.^1577
- Other Caching Cases
(a) Facebook v. Power VenturesIn Facebook, Inc. v. Power Ventures, Inc.,^1578 the defendants operated an Internet service
called Power.com that collected user information from Facebook’s web site outside of the
“Facebook Connect” application programmer’s interface (API). After a user provided his or her
user names and passwords, the Power.com service used the access information to scrape user
data from those accounts. Facebook alleged that the defendants committed direct and indirect
copyright infringement when they made cached copies of Facebook’s web site during the process
of extracting user information. The defendants brought a motion to dismiss the copyright claims.
The court denied the motion, ruling that Facebook’s allegation that the defendants made an
unauthorized cache copy of the web site on each occasion of access to scrape data was sufficient
to survive a motion to dismiss.^1579
(^1576) Id. at 14-16.
(^1577) Id. at 18-20.
(^1578) 2009 U.S. Dist. LEXIS 42367 (N.D. Cal. May 11, 2009).
(^1579) Id. at *1-11.