Comparative Analysis of the Search Engine Caching Process under EU and US Copyright Laws

Abstract

In fact, search engines operate as filters for the abundance of information available online; moreover, they represent the essential online techniques within the functioning of the Internet. The importance of search engines is undeniable. In fact, some of the most popular search engines such as Google, Yahoo, Bing and Ask receive billions and even trillions of requests every day. Generally, search engines can be represented as the virtual portals through which the Internet is actually experienced and online information is “properly” organized. Search engine caching is a complex process and may be viewed as a solution to the Internet congestion and traffic. It can benefit end users by providing “cached” links to the relevant information; however, it increases potential legal risk by copying protected content without authorization.

This paper examines the search engines caching process and their potential liability for copyright infringement in both EU and US legal systems. The first part of the analysis will explore the general aspects and “nature” of caching process, its benefits and drawbacks for online environment. The second part will consider the potential liability of search engines and lawfulness of caching process.This paper will analyze the European Union and United States legal approaches to possible violation of copyright by search engines and “available” defenses, which can be applied to Online Service Providers (OSPs), particularly, application of Fair Use doctrine, Digital Millennium Copyright Act (DMCA) provisions, exemptions and limitations under Information Society Directive and E-Commerce Directive’s “safe harbor” provisions.

Keywords: copyright, search engines, caching, Online Service Providers, fair use doctrine, DMCA, 'safe harbor', InfoSoc Directive, E-Commerce Directive