Advanced Copyright Law on the Internet

The principle distilled from these cases is a requirement that defendants must

actively engage in one of the activities recognized in the Copyright Act. Based on

the evidence before the Court it appears that Cybernet does not use its hardware to

either store the infringing images or move them from one location to another for

display. This technical separation between its facilities and those of its

webmasters prevents Cybernet from engaging in reproduction or distribution, and

makes it doubtful that Cybernet publicly displays the works. Further, there is

currently no evidence that Cybernet has prepared works based upon Perfect 10’s

copyrighted material. The Court therefore concludes that there is little likelihood

that Perfect 10 will succeed on its direct infringement theory.^145

(l) Field v. Google

In Field v. Google,^146 discussed in greater detail in Section III.B.4(a) below, the court
ruled that Google should not be liable as a direct infringer for serving up through its search
engine, in response to user search queries, copies of the plaintiff’s copyrighted materials that had
been cached by Google’s automated crawler, the Googlebot. Citing the Netcom and CoStar
cases, the court noted that a plaintiff must “show volitional conduct on the part of the defendant
in order to support a finding of direct copyright infringement.”^147 For some unknown reason, the
plaintiff did not allege that Google committed infringement when its Googlebot made the initial
copies of the plaintiff’s Web pages on which his copyrighted materials had been placed and
stored those copies in the Google cache, nor did the plaintiff assert claims for contributory or
vicarious liability. Instead, the plaintiff alleged that Google directly infringed his copyrights
when a Google user clicked on a link on a Google search results page to the Web pages
containing his copyrighted materials and downloaded a cached copy of those pages from
Google’s computers.^148

The court rejected this argument:

According to Field, Google itself is creating and distributing copies of his works.

But when a user requests a Web page contained in the Google cache by clicking

on a “Cached” link, it is the user, not Google, who creates and downloads a copy

of the cached Web page. Google is passive in this process. Google’s computers

respond automatically to the user’s request. Without the user’s request, the copy

would not be created and sent to the user, and the alleged infringement at issue in

this case would not occur. The automated, non-volitional conduct by Google in

response to a user’s request does not constitute direct infringement under the

Copyright Act.^149

(^145) Id. at 1168-69.
(^146) 412 F. Supp. 2d 1106 (D. Nev. 2006).
(^147) Id. at 1115.
(^148) Id.
(^149) Id.