the United States District Court for the District of Nevada

“ In summary, the first fair use factor weighs heavily in Google's favor because its "Cached" links are highly transformative. The second fair use factor weighs only slightly against fair use because Field made his works available in their entirety for free to the widest possible audience. The third fair use factor is neutral, as Google used, no more of the copyrighted works than was necessary to serve its transformative purposes. The fourth fair use factor cuts strongly in favor of fair use in the absence of any evidence of an impact on a potential market for Field's copyrighted works. ”

“ A Web site publisher can instruct a search engine not to cache the publisher's Web site by using a "no-archive" meta-tag. According to Dr. Levine, the "no-archive" meta-tag is a highly publicized and well-known industry standard. Levine Report ¶¶33–37. Field concedes he was aware of these industry standard mechanisms, and knew that the presence of a "no archive" meta-tag on the pages of his Web site would have informed Google not to display "Cached" links to his pages. Despite this knowledge, Field chose not to include the no-archive meta-tag on the pages of his site. ”

“ Field makes the works available to the public for free in their entirety, and admits that he has never received any compensation from selling or licensing them. See Field Dep. at 132:10–17. There is likewise no evidence that by displaying "Cached" links for pages from Field's site, Google had any impact on any potential market for those works. [9]
[*1122] More generally, there is no evidence before the Court of any market for licensing search engines the right to allow access to Web pages through "Cached" links, or evidence that one is likely to develop. ”

“ Field next claims that Google's cache does not satisfy the requirements of Section 512 (b) (1) (B) . Section 512 (b) (1) (B) requires that the material in question be transmitted from the person who makes it available online, here Field, to a person other than himself, at the direction of the other person. Field transmitted the material in question, the pages of his Web site, to Google's Googlebot at Google's request. Google is a person other than Field. Thus, Google's cache meets the requirement of Section 512 (b) (1) (B) . ”

“ An issue as to a material fact is only "genuine" if the evidence regarding the disputed fact is "such that a reasonable jury could return a verdict for the nonmoving party," and a dispute is "material" only if it could affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986) .
Discussion I. Direct Infringement of the Copyrighted Works Google has filed a motion for summary judgment that by operating its cache and presenting "Cached" links to works within it, Google does not directly infringe Field's copyrighted works. ”

“ Under this view, the market for a copyrighted work is always harmed by the fair use of the work because it deprives the copyright holder of the revenue it could have obtained by licensing that very use. ”

“ Undisputed Facts Google, the Google Cache, and "Cached" Links. 6.Google maintains one of the world's largest and most popular Internet search engines, accessible, among other places, on the World Wide Web at www.google.com. See Brougher Decl. ¶2. Internet search engines like Google's allow Internet users to sift through the massive amount of information available on the Internet to find specific information that is of particular interest to them. ”

“ Accordingly, Field's motion with respect to these safe harbors is denied.
The safe harbor of Section 512 (b) is directed to system caches and states that " [a] service provider shall not be liable for monetary relief . . . for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider" provided certain requirements are met. See 17 U.S.C. § 512 (b) (1) . Field contends that three elements of the safe harbor are missing. ”

“ Am-Law Publ'g Corp., 745 F.2d 142 (2d Cir. 1984) (finding fair use for a letter to the editor that was published in a modified form) ; Salinger v. Random House, Inc., 811 F.2d 90, 95 (2d Cir. 1987) (describing Diamond as "applying fair use to a letter to the editor of a newspaper, which, though not previously printed, was obviously intended for dissemination") . ”