It is unknown whether there will be efforts to reintroduce this provision in another
session of Congress.
III. APPLICATION OF COPYRIGHT RIGHTS TO
SPECIFIC ACTS ON THE INTERNET
As is apparent from Part II, copyright owners hold a potentially very broad panoply of
rights that may be applicable to acts on the Internet. These rights may well be expanded by the
recently adopted WIPO treaties. Part III of this paper analyzes the potential application of such
rights to various actions on the Internet, such as browsing, caching, linking, operation of an
Internet service or bulletin board, creation of derivative works, and resale or subsequent transfer
of works downloaded from the Internet, as well as how various traditional defenses – such as fair
use and the implied license doctrine – may be interpreted with respect to Internet activities.
A. Browsing
Browsing is probably the single most common activity of users on the Internet today. It
provides a graphic illustration of the difficulty and uncertainty of applying traditional copyright
rights, in which tangible objects are the paradigm for transfer of information, to the Internet
medium, in which electronic transmissions are the paradigm for transfer of information. The
difficulty arises principally from the fact that, unlike in the case of traditional media, reading or
use of a copyrighted work on the Internet generally requires making a “copy” of the work (at
least under the logic of the MAI case and its progeny and under the WIPO Copyright Treaty),
and may require a distribution, transmission, and access of the work as well. Thus, although
“reading” and “using” are not within a copyright holder’s exclusive rights, copying, distribution,
and (under the WIPO treaties) transmission and access, are. To the extent the latter acts are
necessarily incidental to browsing a work on the Internet, such browsing may technically
infringe multiple rights of the copyright holder.
Indeed, one recent decision held that the act of browsing an unauthorized copy of a
copyrighted work constituted copyright infringement, because the browsing caused an additional
copy of the work to be made in RAM. Specifically, in Intellectual Reserve, Inc. v. Utah
Lighthouse Ministry, Inc.,^1517 the court, citing the MAI decision, stated, “When a person browses
a website, and by so doing displays the [copyrighted material], a copy of the [copyrighted
material] is made in the computer’s random access memory (RAM), to permit viewing of the
material. And in making a copy, even a temporary one, the person who browsed infringes the
copyright.”^1518
In addition, browsing may implicate the right of public display and/or public
performance. For example, the NII White Paper takes the position that browsing through copies
of works on the Internet is a public display of at least a portion of the browsed work.^1519 In
(^1517) 53 U.S.P.Q.2d 1425 (D. Utah 1999).
(^1518) Id. at 1428.
(^1519) NII White Paper at 45.