Advanced Copyright Issues on the Internet - Fenwick & West LLP

On Line (AOL), may constitute infringements of the public performance right. 1073 As noted inPart II above, the fact that potential recipients of transmitted displays and performances aregeographically and/or temporally dispersed does not prevent a transmission to a single recipientin any given instance from creating a “public” display or performance.In a great many instances, a copyright holder will have placed material on the Internetwith the intent and desire that it be browsed. Browsing of such material will no doubt bedeemed to be either within the scope of an implied license from the copyright holder or a fairuse. For example, the court in Religious Technology Center v. Netcom On-Line CommunicationServices 1074 noted in dicta that much of digital browsing is probably a fair use or an innocentinfringement:Absent a commercial or profit-depriving use, digital browsing is probably a fairuse; there could hardly be a market for licensing the temporary copying of digitalworks onto computer screens to allow browsing. Unless such a use iscommercial, such as where someone reads a copyrighted work online andtherefore decides not to purchase a copy from the copyright owner, fair use islikely. Until reading a work online becomes as easy and convenient as reading apaperback, copyright owners do not have much to fear from digital browsing andthere will not likely be much market effect.Additionally, unless a user has reason to know, such as from the title of amessage, that the message contains copyrighted materials, the browser will beprotected by the innocent infringer doctrine, which allows the court to award nodamages in appropriate circumstances. In any event, users should hardly worryabout a finding of direct infringement: it seems highly unlikely from a practicalmatter that a copyright owner could prove such infringement or would want to suesuch an individual. 1075Although the Netcom court is no doubt correct in its observations under U.S. copyrightlaw, nevertheless browsing raises important copyright problems that cannot be dismissed simplyon the notion that doctrines such as fair use, implied license, or innocent infringement willremove the problems entirely. First, Internet activities are inherently global, and countriesoutside the U.S. may not apply defensive doctrines such as fair use and implied license asbroadly as U.S. courts. At best, the rules may differ from country to country, which will breeduncertainty and the possibility of inconsistent results in different countries.Second, as elaborated below in the discussion on caching, copyright owners may beginplacing notices on their works governing the uses to which they may be put. Such notices mayrestrict use of the work in ways that are unclear or undesirable, and the applicability of the fairuse or implied license doctrines may become more uncertain in the face of such notices.1073 The public digital performance right in a sound recording may also be implicated.1074 907 F. Supp. 1361 (N.D. Cal. 1995).1075 Id. at 1378 n.25.- 247 -