Google and Fair Use Exemption

Chalk up a win to the Google twins, in a ruling out of the District Court for the Eastern District of Pennsylvania.

A lawsuit alleging that Google Inc.’s Web search systems infringe on a publisher’s copyright was dismissed in a judgment that had interesting things to say about .

In a ruling issued last Friday and made known on Thursday, Judge R. Barclay Surrick of the U.S. District Court for the Eastern District of Pennsylvania rejected eleven allegations contained in a civil complaint by Gordon Roy Parker of Philadelphia. Parker an online publisher of sexual seduction guides with titles like “Why Hotties Choose Losers” and “29 Reasons Not To Be A Nice Guy” is a former paralegal who acted for himself in suing Google. His site also offers racetrack betting and chess-playing tips. He accused Google of copyright and trademark infringement, invasion of privacy, negligence, racketeering, abuse of legal process and civil conspiracy.

Judge Surrick’s ruling found that Google enjoys projection under an exemption to the Communications Decency Act for online service providers acting as an automatic redistributor of published material.

“It is clear that Google’s automatic archiving of Usenet postings and excerpting of websites in its results to users’ search queries do not include the necessary volitional element to constitute direct copyright infringement”.

There was no contributory copyright infringement either, said Judge Surrick. Parker had claimed that Google was in breach because it allowed others to view infringed content, but had not provided evidence – particularly in relation to Google’s knowledge of the supposedly infringing activity – to support this claim.

Nor did he accept that the automatic caching of material amounted to infringement, following a January ruling by the Nevada District Court in favour of Google in a copyright lawsuit filed by a lawyer who publishes poems on his Web site. The judge in that case affirmed Google’s “fair use” right to cache, or store a copy in its database for redistribution.

“The Parker decision is one of several recent rulings finding that Google’s services are consistent with principles of copyright law,” Michael Kwun, Google’s litigation counsel, said in an e-mail from the company.

Google’s legal work is not all done. The fight with the Department of Justice over access to customer data is still pending The DoJ issued subpoenas against Google and three others including America Online (AOL), Yahoo and MSN, for Web data – as part of an ongoing lawsuit defending the Child Online Protection Act 1998, a law which deems it a criminal offence to make material harmful to minors commercially available on the Web. and its loss to Perfect 10 in another caching case will be argued in future proceedings.