neutral. The transformative and socially valuable purposes served by Google’s caching could
not be effectively accomplished by using only portions of the Web pages.^1560
The court ruled that the fourth factor, the effect of the use upon the potential market for
or value of the copyrighted work, weighed strongly in favor of a fair use determination. The
court noted that here there was no evidence of any market for Field’s works, and Field had made
the works available to the public for free in their entirety and admitted he had never received any
compensation from selling or licensing them.^1561 In a significant holding, the court rejected
Field’s argument that Google’s caching harmed the market for his works by depriving him of
revenue he could have obtained by licensing Google the right to present “Cached” links for the
pages containing his works. The court recognized the bootstrapping nature of the argument:
“Under this view, the market for a copyrighted work is always harmed by the fair use of the
work because it deprives the copyright holder of the revenue it could have obtained by licensing
that very use. The Supreme Court has explained that the fourth fair use factor is not concerned
with such syllogisms [citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 592 (1994)]. ...
Where there is no likely market for the challenged use of the plaintiff’s works, the fourth fair use
factor favors the defendant.”^1562
Finally, the court noted that in adjudicating fair use, courts may consider other factors
beyond the four enumerated ones in the copyright statute. In this case, the court found it
significant that Google had acted in good faith, as evidenced by the fact that Google honored the
industry standard protocols that site owners could use to instruct search engines not to provide
“Cached” links for the pages of their sites. Google also provided an automated mechanism for
promptly removing “Cached” links from Google’s search results if undesired links ever
appeared. And Google had, without being asked, promptly removed the “Cached” links to the
pages of Field’s site upon learning that he objected to them.^1563 Accordingly, balancing all the
factors, the court granted summary judgment for Google on its fair use defense.^1564 As discussed
further in Section II.C.5(b)(1)(ii).a below, the court also concluded that Google was entitled to
the safe harbor of Section 512(b)(1) of the DMCA.^1565
(b) Perfect 10 v. Google (aka Perfect 10 v. Amazon)In Perfect 10 v. Google,^1566 discussed in detail in Section II.C.4 above, the district court
ruled, contrary to the Intellectual Reserve case discussed in Section III.D.6 above, that the
caching that occurs in an Internet user’s web browser constitutes a fair use:
(^1560) Id. at 1120-21.
(^1561) Id. at 1121.
(^1562) Id. at 1121 n.9.
(^1563) Id. at 1122-23..
(^1564) Id. at 1125.
(^1565) Id. at 1123-24.
(^1566) 416 F. Supp. 2d 828 (C.D. Cal. 2006), aff’d sub nom. Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1169 (9th
Cir. 2007).