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Abstract:
When crawling the net, search engines' robots make a copy of each web page they visit. These copies are stored in the search engine's cache. In their search results, along with the link to the actual web page and a brief snippet from it, the main search engines provide a link to the cached copy as well. In Field v. Google the court held that the operation of Google's cache falls under the caching safe harbor of the Digital Millennium Copyright Act. Examining both the plain language of the statutory text and its legislative history, this paper shows why search engine caches are not covered by the DMCA caching safe harbor. Taking into account the Ninth Circuit analysis in Perfect 10 v. Amazon, this paper further suggests that the unavailability of a safe harbor does matter, since other defenses may fall short or involve higher litigation costs. In addition, this paper discusses whether an amendment of the DMCA safe harbor regime would be advisable.

search engines, DMCA, caching, cache, copyright, safe harbors

Abstract:
More than ten years have passed since Congress enacted the compromise limiting the potential liability of internet intermediaries in the form of a series of “safe harbors” codified in Section 512 of the U.S. Copyright Act. While these legal protections were arguably instrumental in the rapid growth and development of new services on the internet, their scope and limits remain somewhat uncertain. Only a handful of cases have actually discussed the applicability of the safe harbors to the so-called “Web 2.0” services. The ambiguities and inconsistencies of a heavily lobbied statute, drafted long before the emergence of the current generation of internet services, make it difficult to predict how the provisions will affect these services in the future. This unpredictability is by no means just a problem in the U.S. Some statutes in foreign jurisdictions, also created to limit the liability of internet intermediaries, pose similar problems — affecting internet service providers that operate on a global basis. A particularly relevant example of these foreign statutory adjustments is the European internet safe harbor scheme set forth in the 2000 Directive on Electronic Commerce (“ECD”). While largely inspired by the DMCA safe harbors, the European approach differs from the DMCA in a number of significant ways. Part I of this Article will explore the key differences between the statutes. Part II will examine the specific problem of the safe harbor’s scope and its applicability to Web 2.0 services.

safe harbors, DMCA, Electronic Commerce Directive, copyright, hosting, Web 2.0