It's not copyright infringement if a robot does it.
I can't find any basis for this "robot exception" either in American or European copyright law.
But the Field case opinion seems to assume exactly that in its misguided observations about an "implied license" (pages 10 and 11).
Under this opinion, Google can say that I give them an implied license, even though I clearly state on this page that I don't give Google anything. Just like Field I have decided not to use "robots.txt" since I don't want to do business on Google's terms.
Any human looking for the license for this blog will find and understand this text:
Please feel free to forward copies of this work to others, mirror it on your homepage or blog, or post it on bulletin boards or P2P networks. However, please leave my name attached and don't edit the work. Commercial use requires separate permission.
Permission for such commercial use is expressly denied to Google. I object specifically to inclusion in their cache and access to my pages with the "Google Web Accelerator".
Even extremist Google cheerleaders like that Nevada court would be hard pressed to find any "implied license" in this. I don't see much of any way to make it more clear to a human reader that Google is not welcome here.
That means a human reader can't assume an implied license. If the court's conclusion is true, Google's robot can do something which a human user could not. If someone builds an Epsilon search engine with exactly three blogs covered, of course that person would need to look at the licenses, and obey any restrictions they might set.
So why would robots be held to a lesser standard? Because, as the court observes on page 5, it would be impossible for Google to look at individual licenses?
That logic would come in handy for the Bush government in their NSA spying scandal. "Since we can't do it under FISA, we need to break the law."
Needing to break the law to do something is no excuse.
If anything, using robots means that you make more reproductions as when doing the same thing from hand. Holding billions of reproductions to a lesser standard than three does not convince me.
And as a matter of policy, of course it is possible to build search engines under opt-in. It even makes sense from a business and efficiency point of view, as the Technorati example shows.
Posted by Karl-Friedrich Lenz at January 27, 2006 03:56 PM