Wednesday, February 01, 2006
The implied license ruling is significant, because at its broadest it could suggest that the ability to block caching and the failure to do so results in an implied license. This is a Posnerian type-result: caching is useful and the burden of stopping it is best placed on those who want to stop it and whom can do so easily.
The fair use ruling is also significant due to its highly favorable view of caching as non-substitutional; indeed, since the copy is a cached copy, it is not, by definition, the original. Moreover, the usefulness of comparing the original and the cached copies has now reached such mass acceptance that courts regard it as a given.
One can expect the opinion, which is well-written and reasoned, to feature heavily in future litigation.
[Update:] Re the implied license issue as discussed in Field, please also see Dan Gillmor, Biting the Hand that Feeds, on lobbying efforts of the World Organization of Newspapers, and Agence France Presse v. Google: "If the newspapers are serious about this, they should simply tell Google (and use technology to enforce it) to stop linking to their stories, or put them behind pay-walls. These would be dramatically counterproductive moves, to be sure, but at least the lines would be drawn in an appropriate way. [¶]Legal threats against the Web's design are the wrong way to proceed."
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