Google Copies Everything. Is That Legal?

Noam Cohen brings up the last taboo subject in the search-engine world:

The law has largely been silent on how much copying is fair use by search engines.

How much copying? A search engine spiders (ie copies) everything. That's the whole point of having a search engine. So far, we've managed to get along with a combination of robots.txt (which is a crude but reasonably effective tool), and the online equivalent of "don't ask, don't tell". What's quite clear is that no one is relying on the "fair use" doctrine to support what the search engines are doing.

At the moment, there's a general but largely unspoken assumption that if you put something freely online, then you are OK with people copying it. Indeed, the very act of looking at content in a web browser involves downloading (ie copying) that content. So if you create content designed to be seen in a web browser, it's assumed that you're OK with people copying it.

But as Cohen demonstrates, these things aren't black and white. People might be OK with the copying which happens when individuals view web pages, but not OK with the copying which happens when individuals deliberately move their copy of the content from their browser cache to their hard drive. Or they might be OK with search engines spidering the content in the short term, but not OK with the search engines then remembering that content in perpetuity. (That's one of the distinctions that the proposed Automated Content Access Protocol is intended to draw.)

There are legal and ethical grey areas galore. For instance, there's a website with a photo of me holding a mop. I can order a download of that photo from the website for $100. Alternatively, I can just download the original photo directly by pointing my web browser at a certain address on the exact same website. Is it unethical for me to footle around on the website until I find that address? Once I've found the address, is it unethical for me to save the photo on my hard drive, rather than merely keeping it in my browser cache? And once it's there, is it unethical for me to then print it out as many times as I like, for personal use? And ethics aside, where does the law stand on these issues? All of these questions are highly debatable.

For the time being, nearly everybody benefits from keeping such questions in legal limbo: there are precious few businesses which would like to see Google put out of business by a court which determined it was illegal to spider the web. Sooner or later, however, these issues are going to be litigated. Expect an enormous amount of noise when that finally happens.