Misguided CNET Article on Canadian Copyright Law and Caching/Archiving

CNET ran an odd article today entitled “In Canada: Cache a page, go to jail?” The article discusses some proposed changes to Canada’s copyright law that allegedly would make search engine archiving an infringement. It quotes a bunch of intelligent commentators lamenting how this would be a bad outcome.

Only problem: I think search engine archiving might already be an infringement under existing US law. Shouldn’t we be more worried about laws already on the books than a proposed law?

First, a nomenclature problem. The article casually flips between “caching” and “archiving.” I can understand this casualness. Google even clouds the issue by calling its archive a “cache.”

However, the article’s failure to clearly distinguish archiving from caching is sloppy. Archiving means making and keeping a permanent copy. Caching might mean that, but far more often it means keeping a temporary copy, either stored locally on a desktop machine or stored at some intermediate gateway server, in either case to speed delivery of files to clients served by that gateway.

There is a safe harbor for “caching” in the US, 17 USC 512(b). It only applies to caching at the gateway level, and even then, in limited circumstances that have been rendered mostly historically moot. As far as I know, there has never been a case interpreting 17 USC 512(b) nor has any defendant ever avoided liability using the 17 USC 512(b) safe harbor. Given how practices have changed, there may never be.

Archiving, on the other hand, is a shorthand phrase for saying: “I’m keeping a copy permanently for my business purposes.” These business purposes might be noble and socially-beneficial, as with the Wayback Machine, but in the online context, archiving still violates several of the copyright owner’s rights under 17 USC 106. There are safe harbors for libraries and “archives” under 17 USC 108. I don’t think there’s any meaningful likelihood of online entities like the Wayback Machine or search engines qualifying for the 108 safe harbors. There are other possible defenses to archiving, such as 107 fair use, but fair use is extremely hard-to-predict in advance, and never a solid foundation for building a business.

So, the natural response is…how can search engines and the Wayback Machine get away with their conduct if there’s no law protecting them from copyright infringement? Obviously, not every act of infringement leads to a lawsuit, but I would be reluctant to make any inferences about the legitimacy of either search engine archiving or the Wayback Machine in light of some of the pending lawsuits (such as the Perfect 10 cases against Google and Amazon, and the recent lawsuit against the Wayback Machine). Time will tell, but a copyright infringement lawsuit against either search engines or the Wayback Machine would be non-frivolous.

Don’t get me wrong–I love Google’s cache and the Wayback Machine, and I use both frequently. I’d hate to see them go in a hailstorm of copyright infringement lawsuits. But I don’t think that American law clearly makes such behaviors permissible–which is why the flap about a proposed change to Canadian law strikes me as so odd. If we’re going to wring our hands about that, we should be doing a lot of hand-wringing about US law too.

One other mistake in the article. The article says that Google was warned by Perfect 10. In fact, Google was sued by Perfect 10 last fall. The latest rumors I’ve heard is that the case is in discovery.