Advanced Copyright Issues on the Internet - Fenwick & West LLP

creative works, a goal of the <strong>Copyright</strong> Act.” 1086 The court noted that the commercial nature ofNetcom’s activity should therefore not be dispositive, concluding that “[b]ecause Netcom’s useof copyrighted materials served a completely different function than that of the plaintiffs, thisfactor weighs in Netcom’s favor.” 1087In many instances, however, it may be unclear whether an OSP’s particular form ofcaching serves a “completely different function” than that of the copyright owner’s use of itsmaterial. For example, material may be cached from a source website and accessed by usersfrom the proxy server in exactly the same way that it would have been accessed from the originalserver. The copyright holder might use this fact to distinguish the Netcom court’s holding withrespect to the first statutory fair use factor.(b) Nature of the <strong>Copyright</strong>ed WorkThe second statutory fair use factor looks to the nature of the copyrighted work. Fair userights are generally construed more broadly with respect to factual or published works than withrespect to fictional or unpublished works. Although all material available on the Internet ispublished, such material varies tremendously as to its substantive nature. Thus, whether aparticular cached work is factual, fictional, or in between, will vary from case to case, and theapplication of the second statutory factor to any particular instance of caching cannot necessarilybe predicted in advance.In the Netcom case, the court held that the precise nature of the works at issue was notimportant to the fair use determination “because Netcom’s use of the works was merely tofacilitate their posting to the Usenet, which is an entirely different purpose than plaintiffs’use.” 1088 As noted with respect to the first statutory fair use factor, however, the same may oftennot be true in particular instances of caching. Accordingly, it is difficult to say how the secondstatutory factor may be applied to caching in particular instances.(c) Amount and Substantiality of the Portion UsedThe third statutory fair use factor looks to the amount and substantiality of the portionused in relation to the copyrighted work as a whole. Caching routinely involves the making ofcopies of entire Web pages, which may in turn contain entire copyrighted works, 1089 so in manyinstances all or a substantial portion of a copyrighted work will be copied in the course ofcaching. Generally, no more of a work may be copied than is necessary for the particular use. 1090Although copying an entire work will ordinarily militate against a finding of fair use, 1091 one1086 Id. at 1379.1087 Id.1088 Id.1089 Schlachter, supra note 1079, at 4.1090 See, e.g., Supermarket of Homes v. San Fernando Valley Board of Realtors, 786 F.2d 1400, 1409 (9th Cir.1986).1091 Sony Corp. v. Universal Studios, Inc., 464 U.S. 417, 449-50 (1984).- 252 -