Here are some important observations before we go on:

(1) Ancestry’s IBC is operationally unlike Google’s search engine. “Fair use” and direct infringement cases are highly fact-specific.

(2) Whether Google’s search engine is or is not “fair use” has yet to be considered adequately
by a court because:

1. The Field case involves unique facts (i.e., the plaintiff “set up” Google to get money from them.
2. The Parker case relies to some extent on the Field case. The U.S. Third Circuit Court of Appeals affirmed the trial court in Parker, but ordered that its decision not be published. This means that it cannot be relied upon as precedent by other courts. It also may signal that the Court of Appeals does not have full confidence in the decision.

I do not agree that the Field case “clears away copyright questions that have troubled the entire search engine industry,” as an attorney with the Electronic Frontier Foundation said.

[For the record, I am not a Google-basher. I like Google. While we're at it, I generally like Ancestry.com, too, and I use it frequently. But I was angry to discover my content on their IBC.]

(3) It is possible that Ancestry.com, Google, or somebody else, could set up a genealogy-specific search engine that would “fairly use” both links and a cache of copyright-protected Web sites.

Now back to our series.

The Digital Millennium Copyright Act

In 1998, the Congress enacted the Digital Millennium Copyright Act (DCMA). There are a number of aspects to this statute, but here, the relevant matter is in Title II of the Act, which is known as the “Online Copyright Infringement Liability Limitation Act.” This part of the law creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities. I discuss it here because the court in Field v. Google discussed it and several commenters have mentioned it.

Section 512(b) of the Act provides the so-called system caching “safe harbor” for online service providers. An online service provider is not liable for 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” in certain circumstances. Those circumstances are where:

(A) the material is made available online by a person other than the service provider;

(B) the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person; and

(C) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A), if the conditions set forth in paragraph (2) are met.

Before we go onto paragraph (2), let’s examine the portions above. First, the cache must be “intermediate and temporary.” In Field v. Google cache , the court had evidence before it that Google stored material for 14 to 20 days. Relying on a case called Ellison v. Robertson, 357 F.3d 1072, 1081 (9th Cir. 2004), involving AOL, the Field court held that 14 to 20 days was “intermediate and temporary.”

We don’t know how long Ancestry planned to keep material in its cache. There are hints in the company’s statements that can be interpreted to suggest a temporary cache and hints that suggest a longer storage. I would suggest that 14-20 days is probably on the outer limits of the plain meaning of “intermediate and temporary.” Certainly, if Ancestry intended to keep material in its cache longer than that, they would not qualify for the infringement liability “safe harbor.”

Now here’s the analysis of the rest of paragraph (1):

(A) the material is made available online by a person other than the service provider;

This provision is met when the copyright holder posts his or her content online. The content owner is “a person other than the service provider.”

(B) the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person;

This means that the copyrighted content is accessed by someone other than the copyright owner from the copyright owner. Note that this provision suggests a very temporary caching, because the caching takes place when the content is accessed by a user from the content provider’s site. In Field, the court got this wrong. The court described Google, the service provider, as the “other person.” If Congress had intended the service provider to be “the other person,” Congress would have said so.

The point here is that to take advantage of the safe harbor, Ancestry would have to cache the material temporarily as it was being transmitted between content provider and content user. That’s not how they described what they were doing. Further evidence of my point is in subparagraph (C):

(C) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A) . . . .

A leading copyright expert says about this provision:

Thus, the literal language of Section 512(b) appears not to cover “advance” caching, in which material is copied into a cache for anticipated requests for it, rather than upon the first actual request for it . . . .

David L. Hayes, Advanced Copyright Issues on the Internet (2007) [The link is to a 412-page document. The quote is on page 307.]

This interpretation is also borne out by the legislative history of the DCMA. House of Representatives Report No. 105-551, part2, page 52, includes the following:

For subsection (b) to apply, the material must be made available on an originating site, transmitted at the direction of another person through the system or network
operated by or for the service provider to a different person, and stored through an automatic technical process so that users of the system or network who subsequently request access to the material from the originating site may obtain access to the material from the system or network.

Ancestry was doing “advance” caching, which would not protect it from infringement claims under the DCMA.

Recall that the safe harbor also requires that “the conditions set forth in paragraph (2) are met.” Having already found that Ancestry would not qualify for the DCMA safe harbor, we can assume that Ancestry would meet the other requirements without changing the result.

A careful reading of the DMCA leads to the conclusion that Ancestry’s IBC would not be safe from infringement claims under the Copyright Act.

Having spent a considerable amount of time on this, I need to take a day off. I meant this to be a four-part series, but so many good questions have been raised in the comments that I will answer (many of them, if not all) in one more post on Friday. Then I’ll get back to being a genealogist in this space.

COMING ON FRIDAY: Some Final Thoughts

Notice: The information in this writing is intended for educational use only and is not intended nor should it be construed as legal advice. If you have a legal problem, consult a lawyer admitted to practice in your state of residence. I am an active member of the bar of the State of California and am admitted to practice before the United States Supreme Court and various other federal courts. I am not licensed to practice in any other state. I am not presently soliciting or accepting new clients in the matters discussed above.