The Field case opinion says that there is no copyright infringement in the first place. The reason stated on page 9 of the opinion is that
"Field does not allege that Google committed infringement when its "Googlebot," like an ordinary Internet user, made the initial copies of the Web pages containing his copyrighted works and stores (sic) those copies in the Google cache."
Therefore the court does not look at that phase for copyright infringement. The whole process of entering a work in Google's database is not relevant to the court.
That is somewhat surprising for German standards. Under German civil procedure, the parties can assume that the courts know the law (iura novit curia). They don't have the burden to "allege" anything or explain the law to the courts. Failing to "allege copyright infringement" does not exclude that particular point from the analysis as long as the facts are undisputed.
Maybe the courts in Nevada can't be relied to know the law without having the plaintiff explaining to them.
Anyway, that reasoning holds only if the plaintiff fails to raise this particular point, which seems to be a rather strange strategy.
Of course, the act of copying the Web page into the search database is either a reproduction under Section 106 (1), or under the opinion's weird theory that Google is "transforming" the Web page by highlighting some search terms preparing a derivative work under Section 106 (2).
Trying to deny even that seems to be a rather extreme idea.
Posted by Karl-Friedrich Lenz at January 27, 2006 02:50 PM