The Field case opinions' discussion of factor three (the amount and substantiality of the use) relies on the Sony case to give Google a right to copy and display the whole work in the cache. It cites the following passage from Sony:
"When one considers the nature of a televised copyrighted audiovisual work ... and that timeshifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced ... does not have its ordinary effect of militating against a finding of fair use."
The court then goes on to say that just like the broadcasters in Sony and the photographer in Kelly, Field made his content available to anyone, free of charge.
I have two comments to this analysis.
One. Many websites run ads. In that case, redirecting traffic to the Google cache hurts the advertising income of the website. This might not have been a factor in this case, but should be noted if one talks about extending its finding to different settings.
Two. The Supreme Court was talking about "time-shifting for private home use", about the time-shifter's fair use right. In contrast, this opinion is talking about Google's fair use, not that of individual searchers.
Making the broadcast available to individual viewers free of charge does not mean making it available to other broadcasters for replaying it. In the Sony picture, Google is not the equivalent of a time-shifting viewer, but of a different network. Obviously Sony did not give other broadcasters the right to replay just because the original broadcast was free for the viewer.
Posted by Karl-Friedrich Lenz at January 29, 2006 09:44 AM