The Field case opinion says that the Google's cache is legal under the safe harbor provisions of the Digital Copyright Millenium Act, 17 USC 512 (a) to (d), on pages 22 to 24.
That decision rests on the weird idea that the Google cache is "transient", which it is quite obviously not.
The court cites a "Brougher Deposition" we can't see for the claim that the Google cache stores information for approximately 14 to 20 days.
The only way this could possibly make sense is to say that the cache information is refreshed on average about all two weeks. That might be, since Google refreshes some pages (like blogs) daily and most others about once a month in a so called "deep crawl", see this article on the "Dummies" website for more detail.
Now, refreshing something once a month is obviously quite different from having it transiently for only two weeks, as in the case regarding usenet newsgroups the court discussed.
What Google wants to deliver is a permanent copy of the whole Web.
The decision is also wrong to say that the Google cache is compatible with the condition in Section 512 b) (1) C, which reads:
"(C) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A), if the conditions set forth in paragraph (2) are met."
The user of the Google cache is getting the content from Google, which is not the "person described in subparagraph (A)". Fields is that person.
The lame excuse the court finds for ignoring that clear requirement:
The purpose of Google's cache is enabling access to a page if the user is unsuccessful in requesting the material from the originating site for whatever reason (page 23 of the opinion).
Section 512 requires that the user "requests access to the material" from the originating site. It is not enough that the user "was unsuccessful in requesting".
European law has a similar provision, and since Google can't rely on "fair use" in Europe, it becomes even more important. But this post is too long already.
Posted by Karl-Friedrich Lenz at January 28, 2006 11:13 AM