addition, at least isochronous downloading of performances of copyrighted works in the course
of browsing by members of the public, such as from a commercial online service like America
On Line (AOL), may constitute infringements of the public performance right.^1520 As noted in
Part II above, the fact that potential recipients of transmitted displays and performances are
geographically and/or temporally dispersed does not prevent a transmission to a single recipient
in any given instance from creating a “public” display or performance.
In a great many instances, a copyright holder will have placed material on the Internet
with the intent and desire that it be browsed. Browsing of such material will no doubt be deemed
to be either within the scope of an implied license from the copyright holder or a fair use. For
example, the court in Religious Technology Center v. Netcom On-Line Communication
Services^1521 noted in dicta that much of digital browsing is probably a fair use or an innocent
infringement:
Absent a commercial or profit-depriving use, digital browsing is probably a fair
use; there could hardly be a market for licensing the temporary copying of digital
works onto computer screens to allow browsing. Unless such a use is
commercial, such as where someone reads a copyrighted work online and
therefore decides not to purchase a copy from the copyright owner, fair use is
likely. Until reading a work online becomes as easy and convenient as reading a
paperback, copyright owners do not have much to fear from digital browsing and
there will not likely be much market effect.Additionally, unless a user has reason to know, such as from the title of a
message, that the message contains copyrighted materials, the browser will be
protected by the innocent infringer doctrine, which allows the court to award no
damages in appropriate circumstances. In any event, users should hardly worry
about a finding of direct infringement: it seems highly unlikely from a practical
matter that a copyright owner could prove such infringement or would want to sue
such an individual.^1522Although the Netcom court is no doubt correct in its observations under U.S. copyright
law, nevertheless browsing raises important copyright problems that cannot be dismissed simply
on the notion that doctrines such as fair use, implied license, or innocent infringement will
remove the problems entirely. First, Internet activities are inherently global, and countries
outside the U.S. may not apply defensive doctrines such as fair use and implied license as
broadly as U.S. courts. At best, the rules may differ from country to country, which will breed
uncertainty and the possibility of inconsistent results in different countries.
Second, as elaborated below in the discussion on caching, copyright owners may begin
placing notices on their works governing the uses to which they may be put. Such notices may
(^1520) The public digital performance right in a sound recording may also be implicated.
(^1521) 907 F. Supp. 1361 (N.D. Cal. 1995).
(^1522) Id. at 1378 n.25.