transmission of such material to a requester, in order to make the material available to
subsequent persons requesting it from the person who first made it available online. Thus, the
literal language of Section 512(b) appears not to cover “advance” caching, in which material is
copied into a cache for anticipated requests for it, rather than upon the first actual request for
it,^2355 although the case of Field v. Google, discussed in the next subsection, reached a contrary
result.
In addition, the safe harbor requires that the Service Provider must (i) not modify the
cached material; (ii) comply with all rules of the originator of the material for refreshing,
reloading or other updating of the cached material in accordance with a generally accepted
industry standard data communications protocol (provided such rules are not used by the
originator to unreasonably impair intermediate storage); (iii) not interfere with any technology
associated with the cached material that returns information to the originator (such as cookies)
that would have been obtained in the absence of transmission through caching (provided such
technology does not interfere with the performance of the system or network, is consistent with
accepted industry standard communications protocols, and does not extract other information
from the system or network); (iv) if the originator has conditioned access to the information,
such as upon payment of a fee or provisions of a password, permit access to the cached
(i) does not significantly interfere with the performance of the provider’s system or network or with the
intermediate storage of the material;
(ii) is consistent with generally accepted industry standard communications protocols; and
(iii) does not extract information from the provider’s system or network other than the information that
would have been available to the person described in paragraph (1)(A) if the subsequent users had gained access
to the material directly from that person;
(D) if the person described in paragraph (1)(A) has in effect a condition that a person must meet prior to having
access to the material, such as a condition based on payment of a fee or provision of a password or other
information, the service provider permits access to the stored material in significant part only to users of its
system or network that have met those conditions and only in accordance with those conditions; and
(E) if the person described in paragraph (1)(A) makes that material available online without the authorization
of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access
to, the material that is claimed to be infringing upon notification of claimed infringement as described in
subsection (c)(3), except that this subparagraph applies only if –
(i) the material has previously been removed from the originating site or access to it has been disabled, or a
court has ordered that the material be removed from the originating site or that access to the material on the
originating site be disabled; and
(ii) the party giving the notification includes in the notification a statement confirming that the material has
been removed from the originating site or access to it has been disabled or that a court has ordered that the
material be removed from the originating site or that access to the material on the originating site be disabled.”
(^2355) See also H.R. Rep. No. 105-551 Part 2, at 52 (1998): “For subsection (b) to apply, the material must be made
available on an originating site, transmitted at the direction of another person through the system or network
operated by or for the service provider to a different person, and stored through an automatic technical process
so that users of the system or network who subsequently request access to the material from the originating site
may obtain access to the material from the system or network.”