Case 2:07-cv-02757-MAM Document 23 Filed 09/26/08 Page 1 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`GORDON ROY PARKER
`v.
`YAHOO!, INC., et al.
`
` :
` :
` :
` :
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`
`
`CIVIL ACTION
`
`NO. 07-2757
`
`
`
`McLaughlin, J.
`
`September 25, 2008
`
`MEMORANDUM AND ORDER
`
`I.
`
`Plaintiff Gordon Roy Parker (“Parker”), pro se, brings
`this action against Defendants Yahoo!, Inc. (“Yahoo”) and
`Microsoft Corporation (“Microsoft”), alleging copyright
`infringement, breach of contract, and negligence. Before the
`Court are the defendants’ motions to dismiss. The Court will
`grant in part and deny in part these motions.
`
`The Complaint
`Parker is the author of several registered works
`including Outfoxing the Foxes and Why Hotties Choose Losers, both
`which are published online and are freely available from Parker’s
`website. Defendants Yahoo and Microsoft own and operate widely
`used internet search engines. Parker alleges that these search
`engines create and republish unauthorized “cached” copies of his
`works. That is, when an internet user runs a search on either of
`the defendants’ search engines, the search results include
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`hyperlinks to archived, or “cached,” copies of the web pages that
`are responsive to the user’s inquiry. A user may view these
`search results either by following a hyperlink to the original
`website or, alternatively, by viewing the “cached” copy that is
`hosted on the defendants’ computers. Parker concedes in his
`complaint that the defendants each provide opt-out mechanisms
`that would prevent his websites from being cached, but that
`Parker has not made use of them.
`Parker claims that by making cached copies of his
`websites available to their users, both Yahoo and Microsoft
`republish his works in their entirety without his permission.
`Accordingly, Parker has brought five claims against both
`defendants: direct copyright infringement (Count I),
`contributory copyright infringement (Count II), vicarious
`copyright infringement (Count III), breach of contract (Count
`IV), and negligence (Count V).
`
`II. Analysis
`The defendants have both filed motions to dismiss under
`Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which
`relief can be granted. The Court will grant in part and deny in
`1
`
`In considering the defendants’ motion to dismiss, the
`1
`Court must accept the allegations in the amended complaint as
`true and draw all reasonable inferences in favor of the
`plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 228
`(3d Cir. 2008). A plaintiff must, however, include factual
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`Case 2:07-cv-02757-MAM Document 23 Filed 09/26/08 Page 3 of 19
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`part the defendants’ motions to dismiss Count I and grant the
`defendants’ motions to dismiss as to all other counts.
`
`A.
`
`Direct Copyright Infringement (Count I)
`To properly allege a claim of copyright infringement, a
`plaintiff must establish: (1) ownership of a valid copyright;
`and (2) unauthorized copying of original elements of the
`plaintiff’s work. Kay Berry, Inc. v. Taylor Gifts, Inc., 421
`F.3d 199, 203 (3d Cir. 2005). The word “copying” in this context
`is “a shorthand reference to the act of infringing any of the
`copyright owner’s five exclusive rights set forth at 17 U.S.C. §
`106.” Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277,
`291 (3d Cir. 1991) (internal quotations omitted).
`Although copyright infringement generally operates
`under a theory of strict liability, various courts have required
`an additional element of “volition or causation” to find direct
`infringement. E.g., CoStar Group, Inc. v. LoopNet, Inc., 373
`F.3d 544, 549 (4th Cir. 2004); Religious Tech. Ctr. v. Netcom
`On-Line Commun. Servs., 907 F. Supp. 1361, 1372 (N.D. Cal. 1995).
`But see 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright
`
`allegations sufficient to establish the plausibility of
`entitlement to recovery. See Bell Atlantic Corp. v. Twombly, 127
`S. Ct. 1955, 1965-66 (2007); Phillips, 515 F.3d at 234. A pro se
`complaint, on the other hand, “must be held to less stringent
`standards than formal pleadings drafted by lawyers.” Erickson v.
`Pardus, 127 S. Ct. 2197, 2200 (2007) (per curiam) (quoting
`Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
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`§ 12B.06[B][2][c][ii] (2008) (arguing that the text and
`legislative history of the Copyright Act show that volition is
`only one of several considerations and not a decisive factor).
`The defendants have raised two defenses against the
`plaintiff’s claim of direct copyright infringement: (1) that
`Parker’s claim is barred by the doctrine of issue preclusion; and
`(2) that Parker has impliedly licensed the defendants to display
`his works.2
`
`Issue Preclusion
`1.
`Both defendants argue that the doctrine of issue
`preclusion applies to this case. Issue preclusion, or
`3
`collateral estoppel, prevents a party from relitigating an issue
`if: (1) the identical issue was previously adjudicated; (2) the
`4
`
`In their supplemental submissions after oral argument,
`2
`Microsoft and Yahoo both withdrew two arguments they had made in
`their original motions to dismiss: (1) that search engines lack
`the “volition” required to commit constitute copyright
`infringement as a matter of law; and (2) that the alleged
`infringing behavior is protected under the safe harbor provisions
`of the Digital Millennium Copyright Act, 17 U.S.C. § 512(b).
`Microsoft Supp. Br. 2 n.1; Yahoo Supp. Br. 5 n.2. Both
`defendants have reserved the right to reassert these defenses at
`a later stage.
`Although issue preclusion is an affirmative defense, it
`3
`may be raised on a motion to dismiss under Fed. R. Civ. P.
`12(b)(6). See Connelly Found. v. Sch. Dist. of Haverford Twp.,
`461 F.2d 495, 496 (3d Cir. 1972).
`To decide whether an issue is sufficiently “identical,”
`4
`the Restatement (Second) of Judgments suggests examining four
`factors: (1) substantial overlap between the evidence or
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`issue was actually litigated; (3) the previous determination was
`necessary to the decision; and (4) the party being precluded from
`relitigating the issue was fully represented in the prior action.
`Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d
`244, 249 (3d Cir. 2006). A litigant may also be estopped from
`advancing a position presented against a different party in a
`previous action, provided that the litigant had a “full and fair”
`opportunity to litigate the issue in the first action. Id.
`Parker previously brought an action in this Court for,
`among other things, direct copyright infringement against Google,
`Inc. (“Google”). See Parker v. Google, Inc., 422 F. Supp. 2d 492
`(E.D. Pa. 2006), aff’d, 242 Fed. App’x 833 (3d Cir. 2007)
`(non-precedential), cert. denied, 128 S. Ct. 1101 (2008). In
`that litigation, Parker alleged that Google directly infringed
`his copyrights by archiving and displaying USENET postings that
`contained copyrighted material, and also by displaying excerpts
`
`argument to be advanced between the two proceedings; (2)
`application of the same rule of law; (3) overlap in discovery and
`pretrial preparation; and, (4) how closely related the claims
`are. Restatement (Second) of Judgments § 27 cmt. c (1982), cited
`with approval by Peloro v. United States, 488 F.3d 163, 176 n.12
`(3d Cir. 2007).
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`of Parker’s website in a list of search results. 422 F. Supp.
`5
`2d at 496.
`
`In making its decision, the district court only briefly
`discussed Google’s display of “cached” websites. The court did
`note that on each cached web page accessed by users, Google
`includes a disclaimer stating that the cached version is merely
`an archival copy of the original web page. Id. Neither the
`district court nor the court of appeals, however, confronted the
`issue of whether Google committed direct copyright infringement
`by republishing “cached” copies of Parker’s web pages on Google’s
`own site. Instead, considering only the issues of Google’s
`display of an archive of USENET and its display of excerpts of
`Parker’s website in search results, the district court found that
`Google’s automatic archiving of USENET postings and excerpting of
`websites in its results to users’ search queries lacked the
`necessary volitional element to constitute direct copyright
`infringement. Id. at 497. The court of appeals, in a non-
`precedential opinion, affirmed that finding. 242 Fed. App’x at
`837.
`
`Yahoo and Microsoft argue that the issues involved in
`this case are similar enough to those in Google to foreclose
`
`The “USENET” is a global system of online bulletin
`5
`boards. Google had purchased an archive containing the postings
`to these boards, including a posting by one user who reproduced
`the entirety of one of Parker’s works. See Google, 422 F. Supp.
`2d at 495 & n.1.
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`further litigation. Yahoo argues that if Parker had been
`asserting only a claim against Google for displaying USENET
`archives and merely excerpting his website, then “there would
`have been no need to include separate allegations related to
`Google’s general ‘archiving,’ or caching, and Google’s ‘USENET
`archive.’” Yahoo Supp. Br. 5. At oral argument in this case,
`Parker argued that he had wanted to assert a claim of direct
`infringement against Google as a result of Google’s “cached” copy
`of his website in Google, but Google removed his works
`sufficiently before Parker filed suit such that his claim was
`time-barred. As Parker has alleged, however, neither of the
`defendants in this case have taken down his works. See Oral Arg.
`Tr. 8-9, June 25, 2008.
`The Court is not persuaded that the issues raised in
`the Google litigation are sufficiently “identical” to the issues
`in the present action to invoke issue preclusion with respect to
`all aspects of the plaintiff’s claims in this case. Although the
`activity in question–-archiving and displaying Parker’s content--
`is similar, this case differs in the scope and method of the
`display of Parker’s works that are at issue. Parker alleges that
`the defendants republish the entirety of his online works, not
`mere excerpts or quotations, as Google had done. Parker also
`alleges that the defendants’ choice to display “cached” copies of
`his works accompanying search results is a function that is
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`independent from the query functionality and automatic
`excerpting. Compl. ¶ 21-23. As the Court has noted, the
`“caching” issue, as it relates to direct infringement, was not
`taken up in Google.
`The Court is persuaded, however, that to the extent
`that Parker alleges direct infringement when the defendants make
`an initial copy of Parker’s works, this claim is precluded. The
`court of appeals affirmed that Google was entitled to display
`excerpts of Parker’s website. Google, 242 Fed. App’x at 835-37.
`Implicit in this affirmation is a determination that Google is
`allowed to make an initial copy of the plaintiff’s works for the
`purpose of indexing. The only claim remaining, therefore, is
`whether the defendants infringe Parker’s copyright by displaying
`a “cached” copy of his works.
`
`Implied License
`2.
`An implied license is a defense to a claim of copyright
`infringement. See MacLean Assocs., Inc. v. Wm. M.
`Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 778-79 (3d Cir.
`1991). Although transfers of copyright and exclusive licenses
`6
`
`A complaint may be subject to dismissal under Rule
`6
`12(b)(6) when an affirmative defense appears on the face of a
`complaint. See Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir.
`2001); ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994).
`In deciding whether the complaint has established an affirmative
`defense, all reasonable inferences must be drawn in favor of the
`plaintiff. Leveto, 258 F.3d at 163.
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`must be made in writing, the writing requirement does not apply
`to nonexclusive licenses that do not transfer ownership of the
`copyright. See 17 U.S.C. §§ 101, 204; MacLean Assocs., 952 F.2d
`778-79. Instead, a copyright owner may grant a nonexclusive
`license expressly or impliedly through conduct. MacLean Assocs.,
`952 F.2d at 779.
`Generally, a court can find an implied license “where
`the copyright holder engages in conduct from which [the] other
`[party] may properly infer that the owner consents to his use.”
`Field, 412 F. Supp. 2d at 1116 (quoting De Forest Radio Tel. &
`Tel. Co. v. United States, 273 U.S. 236, 241 (1927) (internal
`quotations omitted)) (alterations in original). Various courts
`have found that silence or lack of objection may also be the
`equivalent of a nonexclusive license, especially where the
`plaintiff knows of the defendant’s use and encourages it. See
`Field v. Google, Inc., 412 F. Supp. 2d 1106, 1116 (D. Nev. 2006);
`Keane Dealer Servs., Inc. v. Harts, 968 F. Supp. 944, 947
`(S.D.N.Y. 1997).
`In Field v. Google, Inc., the United States District
`Court for the District of Nevada considered a case that is
`strikingly similar to the present one: Field, an author of
`copyrighted works published online at his website, sued Google in
`copyright for creating and storing cached versions of his works
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`as they appeared on his website. The plaintiff there was also
`7
`aware that he could have opted out of being included in Google’s
`searches by including “no-archive” HTML “meta-tags” on his web
`page. Nonetheless, he brought a claim of direct copyright
`infringement against Google for violating his exclusive right to
`reproduce and distribute copies of his works. Among other
`defenses, Google asserted that the plaintiff had impliedly
`licensed Google to reproduce his work because he had consciously
`chosen not to include the no-archive meta-tag on the pages of his
`website. 412 F. Supp. 2d at 1116.
`The district court agreed, finding that the plaintiff’s
`conscious choice was “reasonably interpreted” by Google to be the
`grant of a license to Google for that use. Id. The court also
`noted that the opt-out meta-tag was a “well-known industry
`standard,” and that it would be impossible for Google to
`personally contact every website owner to ascertain whether the
`owner wanted to have her pages listed in search results or be
`accessible through cached links. Id. at 1112, 1116. The court
`
`Although there was evidence that the author in Field
`7
`created and copyrighted his works for the specific purpose of
`manufacturing a claim of copyright infringement, this fact does
`not affect the issue of implied license, as that issue requires
`the court to inquire whether the plaintiff’s conduct, as it
`objectively appeared to the defendant, gave the defendant reason
`to believe that it was permitted to use the plaintiff’s work.
`See Field, 412 F. Supp. 2d at 1113-14. The Court emphasizes that
`it is not drawing any comparison between the motivations of the
`plaintiff in Field and the plaintiff in this case.
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`thus concluded that Google had sufficiently established the
`defense of implied license.8
`Here, Parker acknowledges in his complaint that the
`defendants honor “electronic protocols” that would prevent the
`search engines from displaying a “cached” copy of his works, as
`did Google in the Field case. He also acknowledges that the
`defendants remove offending content upon request. Compl. ¶ 24.
`Yahoo and Microsoft argue that Parker has thus granted the search
`engines an implied license to copy and display his works because
`Parker failed to employ the electronic “robots.txt” protocol or
`to send to them a take-down notice. In response, Parker
`9
`
`Without discussing choice of law, the district court
`8
`implicitly found that federal common law governs nonexclusive,
`implied copyright licenses. Field, 412 F. Supp. 2d at 1115-16.
`The United States Court of Appeals for the Third Circuit does not
`appear to have addressed whether federal or state law governs the
`creation of implied copyright licenses. See Foad Consulting
`Group, Inc. v. Azzalino, 270 F.3d at 826 n.9 (9th Cir. 2001)
`(citing MacLean Assocs., 952 F.2d at 778-79 (3d Cir. 1991)); see
`also NASCAR v. Scharle, 184 Fed. App’x 270, 275 (3d Cir. 2006);
`Lowe v. Loud Records, 126 Fed. App’x 545, 547 (3d Cir. 2005). As
`neither party has raised the issue of choice of law, the Court
`will conduct its analysis under federal common law.
`Yahoo requests that the Court take judicial notice of
`9
`several of Yahoo’s own websites that explain how one may opt out
`of Yahoo’s “cache” and a third-party site that details how the
`“robots.txt” protocol, which an owner can include on a web page
`in order to inform search engines not to include that page in
`search results, may be used. In support of the proposition that
`courts may take judicial notice of the contents of a website,
`Yahoo cites Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d
`700, 705 n.5 (3d Cir. 2004). In Kos, the court of appeals took
`judicial notice of a public record that was hosted on the United
`States Patent and Trademark Office’s website regarding the date
`that a notice of allowance was issued. Id. Yahoo’s
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`contends that he has provided constructive notice to the
`defendants that he has not granted a license because he
`registered his works and included a copyright notice on his
`website.
`
`The Court is persuaded that Parker’s complaint
`conclusively establishes the affirmative defense of implied
`license. At the very least, paragraph 24 of his complaint
`suggests that Parker knew that as a result of his failure to
`abide by the search engines’ procedures, the search engines would
`display a copy of his works. From Parker’s silence and lack of
`earlier objection, the defendants could properly infer that
`Parker knew of and encouraged the search engines’ activity, and,
`as did the defendants in Field, they could reasonably interpret
`Parker’s conduct to be a grant of a license for that use.
`At this time, however, the Court will not dismiss Count
`I entirely because the defendants allegedly have continued to
`display Parker’s works, even after the commencement of this
`lawsuit. Although silence or failure to object to a known use
`
`interpretation of Kos and Fed. R. Evid. 201(b)(2) conflicts with
`a later decision of the United States Court of Appeals for the
`Third Circuit. See Victaulic Co. v. Tieman, 499 F.3d 227, 236
`(3d Cir. 2007) (“[P]rivate corporate websites, particularly when
`describing their own business, generally are not the sorts of
`‘sources whose accuracy cannot reasonably be questioned,’ Fed. R.
`Evid. 201(b), that our judicial notice rule contemplates.”).
`Given the early stage of this litigation and concerns surrounding
`authentication, the Court will decline to take judicial notice of
`the websites presented by Yahoo.
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`may imply a license, various courts have held that a nonexclusive
`implied license can be revoked where no consideration has been
`given for the license. See Lulirama Ltd. v. Axcess Broad.
`Servs., Inc., 128 F.3d 872, 882 (5th Cir. 1997); I.A.E., Inc. v.
`Shaver, 74 F.3d 768, 772 (7th Cir. 1996); Avtec Sys., Inc. v.
`Peiffer, 21 F.3d 568, 574 n.12 (4th Cir. 1994)); see also Nimmer
`on Copyright § 10.02[B][5]. The United States Court of Appeals
`for the Fifth Circuit has also held that initiation of a lawsuit
`itself may constitute revocation of an implied license if there
`was no consideration for the license. Carson v. Dynegy, Inc.,
`344 F.3d 446, 452 (5th Cir. 2003); Berg v. Symons, 393 F. Supp.
`2d 525, 543 (S.D. Tex. 2005); see also Keane Dealer Servs. v.
`Harts, 968 F. Supp. 944, 947 (S.D.N.Y. 1997).
`Parker has filed a lawsuit alleging copyright
`infringement against the defendants. At oral argument, Parker
`claimed that neither defendant had taken down his works from
`their websites. Oral Arg. Tr. 8-9, June 25, 2008. This
`continued use over Parker’s objection might constitute direct
`infringement. In any case, this issue was not briefed by the
`defendants and the Court therefore will not decide it now. The
`defendants may brief this issue at a later time.
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`B.
`
`Contributory Copyright Infringement (Count II) and
`Vicarious Copyright Infringement (Count III)
`Courts recognize two types of secondary or indirect
`liability for copyright infringement: contributory infringement
`and vicarious infringement. See Metro-Goldwyn-Mayer Studios Inc.
`v. Grokster, Ltd., 545 U.S. 913, 930 (2005). To state a claim of
`contributory copyright infringement, a plaintiff must allege:
`(1) direct copyright infringement by a third party; (2) knowledge
`by the defendant of the third-party infringement; and (3)
`material contribution to the infringement. See Columbia Pictures
`Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 160 (3d Cir.
`1984). To state a claim of vicarious copyright infringement, a
`plaintiff must allege: (1) direct copyright infringement by a
`third party; (2) direct financial benefit from the third-party
`infringement; and (3) the right and ability to supervise the
`infringement. See Google, 422 F. Supp. 2d at 499-500; see also
`Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). At a
`minimum, a claim of vicarious infringement or contributory
`infringement cannot stand without plausible allegations of
`third-party direct infringement. See Grokster, 545 U.S. at 930.
`Parker argues that when a search engine displays an
`excerpt of his website or, alternatively, when a search engine
`user views a “cached” copy of the plaintiff’s registered works,
`this constitutes direct infringement by the search engine user.
`Compl. ¶ 59. The plaintiff’s complaint, however, fails to
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`specify exactly what it is that actually constitutes the alleged
`“infringing activity.” Because Parker is pro se, the Court will
`construe his complaint liberally. The Court infers that Parker
`is alleging that a search engine user directly infringes his
`copyright when the user’s internet browser stores a temporary
`copy of a file that is necessary for the user to view the
`website.
`
`Parker has alleged that his copyrighted works are
`freely available and that he has taken no steps, aside from
`filing this suit, to prevent search engines from copying and
`displaying his works. Compl. ¶¶ 4, 24. By publishing his works
`online with no registration required or any other access measure
`taken, Parker impliedly authorizes internet users at large to
`view his content and, consequently, to make incidental copies
`necessary to view his content over the internet.10
`Even assuming that search engine users did directly
`infringe his copyright, Parker has not set forth any plausible
`allegations that either defendant financially benefits from this
`third-party infringement of Parker’s copyrighted works, so as to
`constitute vicarious copyright infringement. See Google, 422 F.
`Supp. 2d at 499-500. In addition, Parker has not alleged that
`
`The plaintiff argues that his inclusion of a copyright
`10
`notice on his website revokes any license the defendants may
`claim to have. Compl. ¶ 16. The Court, however, finds that this
`is insufficient to overcome the implied license that Parker gives
`internet users to read his content by virtue of the fact that he
`publishes his content without any technological restriction on
`users’ access.
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`either defendant had knowledge of any third party’s infringement,
`and therefore a claim of contributory copyright infringement must
`also fail. See id. at 499. The Court will therefore dismiss
`Counts II and III.
`
`D.
`
`Breach of Contract (Count IV) and Negligence (Count V)
`The Court will dismiss Counts IV and V against both
`Yahoo and Microsoft because these claims are preempted by federal
`copyright law. Copyright law expressly preempts state law if the
`state law creates rights equivalent to the exclusive rights
`created by copyright. Orson, Inc. v. Miramax Film Corp., 189
`F.3d 377, 382 (3d Cir. 1999). To the limited extent that any
`breach of contract or negligence is alleged, Parker’s state law
`claims cover rights equivalent to those conferred by copyright.
`The Court will therefore dismiss Counts IV and V.
`An appropriate Order follows.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`GORDON ROY PARKER
`v.
`YAHOO!, INC. and
`MICROSOFT CORP.
`
`CIVIL ACTION
`
`NO. 07-2757
`
` :
` :
` :
` :
` :
` :
`
` ORDER
`
`AND NOW, this 25th day of September, 2008, upon
`consideration of the defendants’ motions to dismiss (Docket Nos.
`7, 11) and supplemental briefs, as well as the plaintiff’s
`memoranda in opposition thereto, and following oral argument held
`on June 25, 2008, IT IS HEREBY ORDERED, for the reasons stated in
`the accompanying memorandum dated September 25, 2008, that:
`1.
`Defendant Microsoft’s Motion to Dismiss (Docket
`No. 7) is GRANTED with respect to the plaintiff’s claims of
`contributory and vicarious copyright infringement (Counts II and
`III), and with respect to the plaintiff’s claims of breach of
`contract and negligence (Counts IV and V). As to the plaintiff’s
`direct copyright infringement claim (Count I), Microsoft’s Motion
`is DENIED with respect to any infringement that may have occurred
`as a result of Microsoft’s continued display of “cached” copies
`of the plaintiff’s work after the filing of this lawsuit, but is
`GRANTED with respect to any alleged direct infringement that is
`the result of the display of “cached” copies of the plaintiff’s
`work before the filing of this lawsuit, as well as with respect
`to any alleged direct infringement based upon Microsoft’s
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`creation of an initial copy of Parker’s works for indexing,
`Microsoft’s display of quotations or excerpts in its search
`results lists, or Microsoft’s archiving and displaying of any
`postings containing Parker’s copyrighted works in any USENET
`archives it may maintain.
`2.
`Defendant Yahoo’s Motion to Dismiss (Docket No.
`11) is GRANTED with respect to the plaintiff’s claims of
`contributory and vicarious copyright infringement (Counts II and
`III), and with respect to the plaintiff’s claims of breach of
`contract and negligence (Counts IV and V). As to the plaintiff’s
`direct copyright infringement claim (Count I), Yahoo’s Motion is
`DENIED with respect to any infringement that may have occurred as
`a result of Yahoo’s continued display of “cached” copies of the
`plaintiff’s work after the filing of this lawsuit, but is GRANTED
`with respect to any alleged direct infringement that is the
`result of display of “cached” copies of the plaintiff’s work
`after the filing of this lawsuit, but is GRANTED with respect to
`any alleged direct infringement that is the result of the display
`of “cached” copies of the plaintiff’s work before the filing of
`this lawsuit, as well as with respect to any alleged direct
`infringement based upon Yahoo’s creation of an initial copy of
`Parker’s works for indexing or Yahoo’s display of quotations or
`excerpts in its search results lists, or Yahoo’s archiving and
`
`2
`
`

`
`Case 2:07-cv-02757-MAM Document 23 Filed 09/26/08 Page 19 of 19
`
`displaying of any postings containing Parker’s copyrighted works
`in any USENET archives it may maintain.
`
` BY THE COURT:
`
` /s/ Mary A. McLaughlin
` Mary A. McLaughlin, J.
`
`3