Advanced Copyright Issues on the Internet - Fenwick & West LLP

contains infringing or defamatory material. To avoid liability, the website owner mayremove such material promptly, yet it may continue to be distributed through oldcached versions, giving rise to potential ongoing liability.Out of Date Information: Many websites may contain time sensitive information,such as stock quotes or sports scores. If information is obtained from a cache ratherthan the original site, and the cache has not been refreshed recently, the user mayobtain out of date information or information that is no longer accurate. The problemis heightened by the fact that most caching is “invisible” to the user. In manyinstances the user will simply not know whether the information being presented iscached information, how recently the cache was refreshed, or whether the informationcontained in the cached version is now out of date as compared to information at theoriginal site. A user may therefore unknowingly rely on inaccurate information to hisor her detriment.Interference with Timed Information: Closely related to the problem of out of dateinformation is the problem of interference with timed information. For example, awebsite owner may have contracted with an advertiser to display an advertisingbanner during a certain window of time, say 7:00 to 8:00 p.m. If a page from the siteis downloaded into a cache at 7:30 p.m. and is not refreshed for several hours, userswill see the ad for far more than the one hour the advertiser paid for, and may not seeat all the ad that the next advertiser paid to have displayed from 8:00 p.m. to 9:00p.m. 1080Inaccurate Page Impression and Other Information: Many websites keep track of thenumber of “page impressions” at the site – i.e., the number of times a page isdisplayed from the site to users. Page impressions are often used as a measure foradvertising charges – the more page impressions a site generates among users, themore the site can charge for advertisements placed on the site. Accesses to cachedversions of a Web page may not be counted as page impressions at the originalsite, 1081 and the original website owner may not know how often a given page wasviewed from the cache. 1082 Reduced page impression counts cost the website owneradvertising revenues. In addition, many sites maintain “server logs” which recordactivities of users of the site, from which valuable information may be gleaned.Accesses to cached information will generate entries into the logs of the proxy server,not the original site.Loss of Limits on Access: Caching may also result in the loss of control over accessto information at a site. For example, suppose a website owner desires to limit access1080 See id. at 3.1081 David G. Post, “Bargaining in the Shadow of the Code: File Caching, <strong>Copyright</strong>, and Contracts Evolving inCyberspace,” at 7 (paper presented at the University of Dayton School of Law Symposium on “<strong>Copyright</strong>Owners’ Rights and Users’ Privileges on the Internet,” Nov. 1-2, 1996; copy on file with the author).1082 At least one online service markets to website owners data about the number of page impressions deliveredfrom its cache. Schlachter, supra note 1079, at 3.- 250 -