When the Cached Link is the Weakest Link: Search Engine Caches under the Digital Millennium Copyright Act

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.