Advanced Copyright Issues on the Internet - Fenwick & West LLP

III. APPLICATION OF COPYRIGHT RIGHTS TOSPECIFIC ACTS ON THE INTERNETAs is apparent from Part II, copyright owners hold a potentially very broad panoply ofrights that may be applicable to acts on the Internet. These rights may well be expanded by therecently adopted WIPO treaties. Part III of this paper analyzes the potential application of suchrights to various actions on the Internet, such as browsing, caching, linking, operation of anInternet service or bulletin board, creation of derivative works, and resale or subsequent transferof works downloaded from the Internet, as well as how various traditional defenses – such as fairuse and the implied license doctrine – may be interpreted with respect to Internet activities.A. BrowsingBrowsing is probably the single most common activity of users on the Internet today. Itprovides a graphic illustration of the difficulty and uncertainty of applying traditional copyrightrights, in which tangible objects are the paradigm for transfer of information, to the Internetmedium, in which electronic transmissions are the paradigm for transfer of information. Thedifficulty arises principally from the fact that, unlike in the case of traditional media, reading oruse of a copyrighted work on the Internet generally requires making a “copy” of the work (atleast under the logic of the MAI case and its progeny and under the WIPO <strong>Copyright</strong> Treaty),and may require a distribution, transmission, and access of the work as well. Thus, although“reading” and “using” are not within a copyright holder’s exclusive rights, copying, distribution,and (under the WIPO treaties) transmission and access, are. To the extent the latter acts arenecessarily incidental to browsing a work on the Internet, such browsing may technicallyinfringe multiple rights of the copyright holder.Indeed, one recent decision held that the act of browsing an unauthorized copy of acopyrighted work constituted copyright infringement, because the browsing caused an additionalcopy of the work to be made in RAM. Specifically, in Intellectual Reserve, Inc. v. UtahLighthouse Ministry, Inc., 1070 the court, citing the MAI decision, stated, “When a person browsesa website, and by so doing displays the [copyrighted material], a copy of the [copyrightedmaterial] is made in the computer’s random access memory (RAM), to permit viewing of thematerial. And in making a copy, even a temporary one, the person who browsed infringes thecopyright.” 1071In addition, browsing may implicate the right of public display and/or publicperformance. For example, the NII White Paper takes the position that browsing through copiesof works on the Internet is a public display of at least a portion of the browsed work. 1072 Inaddition, at least isochronous downloading of performances of copyrighted works in the courseof browsing by members of the public, such as from a commercial online service like America1070 53 U.S.P.Q.2d 1425 (D. Utah 1999).1071 Id. at 1428.1072 NII White Paper at 45.- 246 -