“In a legal win for Google, a federal judge dismissed a lawsuit filed by a writer who claimed the search giant infringed on his copyright by archiving a Usenet posting of his and providing excerpts from his Web site in search results.
The lawsuit was filed by Gordon Roy Parker, also known as Ray Gordon, who publishes his writings under the business name of Snodgrass Publishing Group. Parker, of Philadelphia, also posted a chapter of one of his e-books on the Usenet bulletin board network, a collection of thousands of discussion forums called newsgroups.
In his 2004 lawsuit against Google, Parker alleged that the search giant violated copyright law by automatically archiving a copy of his posting on Usenet and by providing excerpts from his Web site in search results.
However, the U.S. District Court for the Eastern District of Pennsylvania ruled on Friday that under case law, Google’s activities, akin to those of an Internet Service Provider, do not constitute infringement (click for PDF of court documents).
“When an ISP automatically and temporarily stores data without human intervention so that the system can operate and transmit data to its users, the necessary element of volition is missing,” the court said.
The ruling cited a January decision in the Field v. Google case in federal court in Nevada that concluded that cached versions of Web pages Google stores and offers as a part of many search results do not infringe copyright.”
This isn’t quite the end of the road for copyright litigation against Google:
“The ruling comes after a decision last month in which a federal judge in Los Angeles said that portions of Google’s image search feature, which displays thumbnail versions of images found on adult photo site Perfect 10 and others, likely violate U.S. copyright law.
The search engine also faces copyright lawsuits filed last year by authors and publishers groups over its controversial Library Project book-scanning plans, and a lawsuit filed by Agence France-Presse and threat of litigation from the World Association of Newspapers for aggregating headlines and photos without permission or compensation.
In a legal blow to Google earlier this week, a federal judge in San Jose, Calif., said he would grant federal prosecutors at least part of their request for excerpts from Google’s index of Web sites. Google is challenging a subpoena from the Department of Justice for a random sampling of Internet addresses and search queries that the DOJ says it needs to help defend a measure designed to hold Web sites liable if minors can access pornography on them.”
It remains to be seen whether caching by a search engine will qualify as a copyright infringement in South African law. Section 74 of the Electronic Communications and Transactions Act (Act 25 of 2002) exempts a service provider from liability for caching in certain instances, namely:
“(1) A service provider that transmits data provided by a recipient of the service via an information system under its control is not liable for the automatic, intermediate and temporary storage of that data, where the purpose of storing such data is to make the onward transmission of the data more efficient to other recipients of the service upon their request, as long as the service provider—
(a) does not modify the data;
(b) complies with conditions on access to the data;
(c) complies with rules regarding the updating of the data, specified in a manner widely recognised and used by industry;
(d) does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain information on the use of the data; and
(e) removes or disables access to the data it has stored upon receiving a take-down notice referred to in section 77.
(2) Notwithstanding this section, a competent court may order a service provider to terminate or prevent unlawful activity in terms of any other law.”
A similar principle may apply to Google (and other search engines) which essentially copy, index and present links to websites which often contain copyrighted materials.