Advanced Copyright Issues on the Internet - Fenwick & West LLP

server other than the original server. For example, an OSP such as AOL may store onits own server for a certain period of time Web pages that have been previouslyrequested by AOL users. When another user subsequently requests a page previouslystored, AOL may download the page from its own server, rather than fetching thepage from the original source server.The use of caching on the Internet stems from at least three reasons: to overcometransmission bandwidth limitations, to load balance serving up web pages (such as throughsearch engines) or distributing other content in high demand through multiple sources, and topreserve archival versions of web pages for use in the event that web sites are removed or godown temporarily.Caching presents difficult copyright issues on a number of fronts. Because cachinginvolves the making of copies, it presents an obvious problem of potential infringement of theright of reproduction. In addition, proxy caching may give rise to infringement of the rights ofpublic distribution, public display, public performance, and digital performance, since copies ofcopyrighted works may be further distributed and displayed or performed from the cache serverto members of the public. Under the WIPO treaties, caching may also infringe the new rights oftransmission and access. Because the situs of infringements of these rights under the WIPOtreaties is most likely the server, caching may give rise to infringements at every proxy server.Large OSPs may have proxy servers at many sites around the globe.2. The Detriments of CachingFrom a legal perspective, because caching has obvious technical benefits in gettinginformation from the Internet to a user faster, one might assume that a copyright owner who hasplaced information on the Internet and desires such information to reach end users asexpeditiously as possible would have no incentive to assert its copyright rights againstcaching. 1077 In legal terms, one might be tempted to conclude that caching will fall within thefair use or implied license doctrines. However, the legal analysis is complex, because cachingcarries with it a number of potential detriments to the owner of the copyrighted material: 1078Loss of Version Control: Caching interferes with the ability of a website operator tocontrol what version of information is delivered to the end user. 1079 For example, awebsite may have been substantially improved, yet an old version of material fromthe site may reside on the proxy server of the end user’s OSP. Many end users maytherefore not see the improved version the website owner desired to present to thepublic. In a more serious vein, suppose a website owner is notified that its site1077 Indeed, in a poll taken during 1997 by Interactive PR & Marketing News, 82% of respondents answered “no” tothe question, “Do you feel that caching of content of Web sites or online service providers constitutesinfringement?” Interactive PR & Marketing News, Vol. 4, No. 28 (Aug. 8, 1997), at 1.1078 In addition to the detriments noted to the copyright owner, caching can give rise to potential liability on the partof the caching entity. For example, if an original site contains defamatory material, the caching entity may bedeemed to have “republished” that defamatory information through the caching mechanism.1079 Eric Schlachter, “Caching on the Internet,” Cyberspace Lawyer, Oct. 1996, at 2, 3.- 249 -