Advanced Copyright Issues on the Internet - Fenwick & West LLP

could argue that caching inherently requires copying all or a substantial portion of the cachedmaterial in order to derive the benefits of the caching, and this factor should therefore not bedispositive of fair use.For example, the Netcom court noted that “the mere fact that all of a work is copied is notdeterminative of the fair use question, where such total copying is essential given the purpose ofthe copying.” 1092 Because Netcom had copied no more of the plaintiff’s works than necessary tofunction as a Usenet server, the court concluded that the third statutory factor should not defeatan otherwise valid defense. 1093OSPs that engage in copying of whole works may be able to rely on this logic by arguingthat such copying is essential given the nature and purpose of caching. Such an argument may,however, be vulnerable to attack, depending upon the way in which the caching is performed.Caching by an OSP of only that material that has been requested by users in some previouslydefined time period may be said to be “essential” because such material has at least ademonstrated basis for expecting that it will be accessed again. But what about extensive“mirroring,” where an OSP copies, for example, entire websites from geographically remote sitesto more local servers? Such caching is not based on actual demand usage. Should this matter?Could the OSP argue that such caching is “essential” to avoid potential network bottlenecks fromthe remote site to its users’ computers? The case of Field v. Google, discussed in SectionIII.B.4(a) below, found extensive caching by Google using automated robots to be a fair use.(d) Effect of Use on the Potential MarketThe fourth statutory fair use factor looks to the effect of the use upon the potential marketfor or value of the copyrighted work. This factor is generally considered the most important ofthe four factors. 1094 In analyzing this factor, a court may look to “‘whether unrestricted andwidespread conduct of the sort engaged in by the defendant … would result in a substantiallyadverse impact on the potential market’ for the original.” 1095 Because caching is inherentlywidespread on the Internet, a court may well look beyond the individual actions of a particularcaching entity and assess the potential aggregate impact of caching on a copyright owner.The application of this factor is very difficult to predict in advance, without knowing theparticular factual circumstances of the caching that is being challenged. There are no doubtmany instances of caching that do not harm the potential market for a copyright owner’s work,especially with respect to caching of material from non-commercial websites that make materialavailable for free. However, even in the case of non-commercial sites, one or more of thedetriments of caching noted in subsection 2 above may be applicable, and the copyright owner1092 Netcom, 907 F. Supp. at 1380 (citing the Supreme Court’s decision in Sony, in which the Court held that totalcopying of copyrighted broadcast programs for the purpose of time-shifted viewing was a fair use).1093 Netcom, 907 F. Supp. at 1380.1094 See 4 M. Nimmer & D. Nimmer, Nimmer on <strong>Copyright</strong> § 13.05[A][4], at 13-180 to –181 (1999) (citing, interalia, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985)).1095 Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1177 (1994) (quoting 3 M. Nimmer & D. Nimmer,Nimmer on <strong>Copyright</strong> § 13.05[A][4]).- 253 -