Advanced Copyright Law on the Internet

Web site, to Google’s Googlebot at Google’s request. Google is a person other than Field.
Thus, Google’s cached meets the requirement of Section 512(b)(1)(B).”^2362 Here the court
appears to have misidentified the parties that Section 512(b)(1)(B) is directed to, although the
misidentification would not seem to change the conclusion that Section 512(b)(1)(B) is satisfied.
Specifically, the court’s quoted language treats Google as the “other person.” However, because
Google is acting as the service provider, it should not be treated as the “other person.” Rather,
Google’s users are the “other persons” to whom Section 512(b)(1)(B) appears to be directed.

Finally, Field contended that Google’s cache did not fully satisfy the requirements of
Section 512(b)(1)(C) requiring that Google’s storage of Web pages be carried out through “an
automated technical process” and be “for the purpose of making the material available to users
... who ... request access to the material from [the originating site].”^2363 The court rejected this
argument, noting that Field’s complaint stated that third party web page content was added to the
Google cache by an automated software process. Nor was there any dispute that one of Google’s
principal purposes in including Web pages in its cache was to enable subsequent users to access
those pages if they were unsuccessful in requesting the materials from the originating site for
whatever reason, which was sufficient to meet the requirements of Section 512(b)(1)(C).
Accordingly, the court granted Google’s motion for partial summary judgment that it qualified
for the Section 512(b) safe harbor.^2364

b. Parker v. Google

In Parker v. Google,^2365 the court ruled, citing Field v. Google, that Google had immunity
under Section 512(b) for claims of direct infringement based on Google’s automatic caching of
USENET messages, including an excerpt of the plaintiff’s copyrighted work that he had posted
to USENET, as a means of indexing web sites and producing results to search queries.^2366
Similar to Field v. Google, the court did not impose any requirement that, to qualify for the
Section 512(b) safe harbor, the caching must be done only after a user has made an initial request
for the materials being cached, but rather could be done in anticipation of user requests for the
materials.

c. Perfect 10 v. Google

In Perfect 10 v. Google,^2367 Perfect 10 alleged that Google infringed on its copyrights in
pictures of nude models by caching portions of websites that hosted infringing images, by
linking to third party websites that hosted infringing images, and by hosting infringing images on
its own servers that had been uploaded by users of Google’s “Blogger” service. On remand from

(^2362) Id.
(^2363) Id.
(^2364) Id. at 1124-25.
(^2365) 422 F. Supp. 2d 492 (E.D. Pa. 2006), aff’d, 2007 U.S. App. LEXIS 16370 (3d Cir. July 10, 2007).
(^2366) Id. at 497-98. The issue of immunity under Section 512(b) was not addressed by the Third Circuit on appeal.
(^2367) 2010 U.S. Dist. LEXIS 75071 (C.D. Cal. July 26, 2010).