Search Engine “Cache” Function Covered by Implied License–Parker v. Yahoo

By Eric Goldman

Parker v. Yahoo, Inc., 2008 WL 4410095 (E.D. Pa. Sept. 25, 2008).

Gordon Roy Parker is a serial pro se Internet law plaintiff and putative owner of copyrights in seemingly misogynistic works such as “Outfoxing the Foxes” and “Why Hotties Choose Losers.” A quick review of Parker’s website reminded me a little of the cute date-movie Hitch, but without any of Will Smith’s charm.

Last year, the Third Circuit dismissed Parker’s copyright infringement lawsuit against Google over Google Groups. In this ruling, the district court rejects most of his copyright infringement claim against Yahoo and Microsoft over the “cache” option in search results.

[Side rant: I once again protest that calling these copies “cached” copies is a serious bastardization of the term. Despite the mislabeling, the search engines present archival copies, not cached copies, and treating them as equivalent creates significant legal doctrinal tension.]

This lawsuit squarely revisits the ground covered in the Field v. Google case, which Google won for 5 different reasons–including that anyone who posts content to the web knowing that search engines display cached copies impliedly licenses the search engines to do so. Here, the search engines apparently obtained the copyrighted works from Parker’s site (instead of from some third party infringing site), and Parker admits he knew of the cache function. As a result, Yahoo and Microsoft can claim an implied license for their cached copies.

However, implied licenses are a weak defense because they can be trumped by express restrictions (see, e.g., Ticketmaster v. RMG). As a result, Parker’s claim survives to the extent that Microsoft and Yahoo retained their cached copies after learning of his objection through the complaint filing.

Along the way, the court also says that Parker cannot complain about the search engines’ initial robotic collection of the copyrighted works for index inclusion because the Third Circuit’s ruling in Parker v. Google implicitly rejected the claim, leading to claim preclusion here. That struck me as a pretty liberal reading of the breezy and brief Third Circuit opinion.

Parker also claimed that individual web users downloading the cached copies are direct infringers. However, the court extends the implied license to them as well. The court offhandedly says that the search engines lack both direct financial benefit from the cached copies and knowledge of the infringement, thus giving further reason to dismiss the secondary infringement claims.

Finally, the court breezily dismisses a breach of contract and negligence claim as being preempted by copyright law. I think the preemption of the breach of contract claim is plainly wrong and should be reversed if the case is appealed.

While Parker’s lawsuit (barely) lives to fight another day, overall this is another great opinion for search engines. Once again, courts are finding broad legal protection for basic search engine operations. This lawsuit also reiterated how pro se plaintiffs can be very helpful to an Internet defendant seeking to establish favorable low-cost legal precedent.

More on this case from Jeff Neuburger.