Advanced Copyright Issues on the Internet - Fenwick & West LLP

[Plaintiff] argues that merely by viewing such websites [containing infringingphotographs], individual users of Google search make local “cache” copies of itsphotos and thereby directly infringe through reproduction. The Court rejects thisargument. Local browser caching basically consists of a viewer’s computerstoring automatically the most recently viewed content of the websites the viewerhas visited. It is an automatic process of which most users are unaware, and itsuse likely is “fair” under 17 U.S.C. § 107. But cf. Intellectual Reserve, Inc. v.Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290 (D. Utah 1999). Localcaching by the browsers of individual users is noncommercial, transformative,and no more than necessary to achieve the objectives of decreasing networklatency and minimizing unnecessary bandwidth usage (essential to the internet).It has a minimal impact on the potential market for the original work, especiallygiven that most users would not be able to find their own local browser cache, letalone locate a specific cached copy of a particular image. That local browsercaching is fair use is supported by a recent decision holding that Google’s owncache constitutes fair use. Field v. Google, Inc., [412 F. Supp. 2d 1106 (D. Nev.2006).] If anything, the argument that local browser caching is fair use is evenstronger. Whereas Google is a commercial entity, individual users are typicallynoncommercial. Whereas Google arranges to maintain is own cache, individualusers typically are not aware that their browsers automatically cache viewedcontent. Whereas Google’s cache is open to the world, an individual’s localbrowser cache is accessible on that computer alone. 1120On appeal, the Ninth Circuit affirmed this ruling, holding that, “even assuming suchautomatic copying could constitute direct infringement, it is a fair use in this context. Thecopyright function performed automatically by a user’s computer to assist in accessing theInternet is a transformative use. Moreover, as noted by the district court, a cache copies no morethan is necessary to assist the user in Internet use. It is designed to enhance an individual’scomputer use, not to supersede the copyright holders’ exploitation of their works. Suchautomatic background copying has no more than a minimal effect on Perfect 10’s rights, but aconsiderable public benefit.” 1121(c) Ticketmaster L.L.C. v. RMG Technologies, Inc.In Ticketmaster L.L.C. v. RMG Technologies, Inc. 1122 the plaintiff Ticketmaster soughtto hold the defendant liable for direct and indirect copyright liability based upon the defendant’sdevelopment and marketing of an automated tool that enabled users (such as ticket brokers) toaccess and navigate rapidly through the Ticketmaster site and purchase large quantities oftickets. The court granted a preliminary injunction against the defendant, finding that thedefendant was highly likely to be found liable for direct copyright infringement because it had,during the course of development of the tool, accessed the defendant’s site and made copies of1120 Id. at 852 n.17.1121 Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1169 (9 th Cir. 2007).1122 507 F. Supp. 2d 1096 (C.D. Cal. 2007).- 259 -