How is Writing on Frosty Window NOT Like Cache?

The District Court of Nevada ruled in Blake Field v. Google that there is no copyright infringement when Google copies, using its “cache” program, third party content and allows internet users to view those cached, third party web pages. The court stated that it is the internet users who are downloading the stored content and that the search engine company is ‘passive’ in the copying and is protected under the DMCA. “Without the user’s request, the copy would not be created and sent to the user; and, the alledged infringement would not have occur. The automated, nonvolitional conduct by “Google in response to a user’s request does not constitute direct infringement under the Copyright Act.”

So on to the frosty window, one of the old chestnuts of the law school copyright class is the ask the question of whether writing word on a frosty window causes sufficient fixation for a copyright to arise. The copyright statute explicitly provides that a copyright subsists in original expression fixed intangible medium. And the ‘front on the window’ chestnut frames the question of what is enough permenance. The answer has been that writing on a frosty window is transient, but with sufficient permenance to be fixed for copyright purposes.

This case juxtaposed with the old chestnut of ‘enough’ highlights how our culture is at an inflexion point. The the visual world of atomic object lessons (frost on the window) are dischordant with the invisible world of electronic object lessons. The judge in Nevada is focusing on the ‘who’ in the atomic world is doing the acting in summoning the case and is oblivious to the ‘what’ in the electronic world where the copying is happening. No. 2:04-CV-0413 (D. Nev.). Good thing Google doesn’t have ‘frost’ caching.

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