information “in significant part”^2356 only upon the same conditions; and (v) respond
expeditiously to remove or disable access to any cached information upon receipt of notice that
such information has been removed or disabled from the originating site (or ordered by a court to
be removed) from which the information was cached.
a. Field v. GoogleThe facts of the case of Field v. Google^2357 are set forth in Section III.B.4(a) above. In
that case, the court ruled that Google was entitled to the Section 512(b) safe harbor for its
activities of caching web sites through its Web crawler known as the “Googlebot” and making
the cached copies of particular pages available for download directly from Google’s computers
by end users clicking on the “Cached” link to a web page contained in search results returned by
Google’s search engine.
The court rejected a number of arguments by the plaintiff, Field, concerning why Google
should not be entitled to the Section 512(b) safe harbor. First, Field contended that, in operating
its cache, Google did not make “intermediate and temporary storage” of the cached material, as
required by Section 412(b)(1). The court cited the Ellison v. Robertson case,^2358 involving the
Section 512(a) safe harbor, which ruled that AOL’s storage of Usenet postings for about 14 days
was both “intermediate” and “transient” as required by Section 512(a). Analogizing to that case,
the court noted that the copy of Web pages Google stored in its cache were present for
approximately 14 to 20 days. The court found that this period was sufficiently short to be
deemed “temporary” under Section 512(b).^2359
In a significant aspect of its ruling, the court also implicitly held that, to qualify for the
Section 512(b) safe harbor, the caching need not be done only after a user has made an initial
request for the materials being cached, but could be done in anticipation of user requests for the
materials: “Like AOL’s repository of Usenet postings in Ellison which operated between the
individuals posting information and the users requesting it, Google’s cache is a repository of
material that operates between the individual posting the information, and the end-user
requesting it.”^2360
Field also contended that Google’s cache did not satisfy the requirements of Section
512(b)(1)(B) that the material in question be transmitted from the person who makes it available
online, here the plaintiff, to a person other than himself, at the direction of the other person.^2361
The court rejected this argument: “Field transmitted the material in question, the pages of his
(^2356) This language appears to have been inserted in recognition of the fact that hackers or others may be able to
circumvent such restrictions on access without knowledge of the Service Provider. Id. at 7.
(^2357) 412 F. Supp. 2d 1106 (D. Nev. 2006).
(^2358) 357 F.3d 1072, 1081 (9th Cir. 2004).
(^2359) Field v. Google, 412 F. Supp. 2d at 1124.
(^2360) Id.
(^2361) Id.