therefore not see the improved version the website owner desired to present to the
public. In a more serious vein, suppose a website owner is notified that its site
contains infringing or defamatory material. To avoid liability, the website owner may
remove such material promptly, yet it may continue to be distributed through old
cached versions, giving rise to potential ongoing liability.- Out of Date Information: Many websites may contain time sensitive information,
such as stock quotes or sports scores. If information is obtained from a cache rather
than the original site, and the cache has not been refreshed recently, the user may
obtain out of date information or information that is no longer accurate. The problem
is heightened by the fact that most caching is “invisible” to the user. In many
instances the user will simply not know whether the information being presented is
cached information, how recently the cache was refreshed, or whether the information
contained in the cached version is now out of date as compared to information at the
original site. A user may therefore unknowingly rely on inaccurate information to his
or her detriment. - Interference with Timed Information: Closely related to the problem of out of date
information is the problem of interference with timed information. For example, a
website owner may have contracted with an advertiser to display an advertising
banner during a certain window of time, say 7:00 to 8:00 p.m. If a page from the site
is downloaded into a cache at 7:30 p.m. and is not refreshed for several hours, users
will see the ad for far more than the one hour the advertiser paid for, and may not see
at all the ad that the next advertiser paid to have displayed from 8:00 p.m. to 9:00
p.m.^1527 - Inaccurate Page Impression and Other Information: Many websites keep track of the
number of “page impressions” at the site – i.e., the number of times a page is
displayed from the site to users. Page impressions are often used as a measure for
advertising charges – the more page impressions a site generates among users, the
more the site can charge for advertisements placed on the site. Accesses to cached
versions of a Web page may not be counted as page impressions at the original
site,^1528 and the original website owner may not know how often a given page was
viewed from the cache.^1529 Reduced page impression counts cost the website owner
advertising revenues. In addition, many sites maintain “server logs” which record
activities of users of the site, from which valuable information may be gleaned.
Accesses to cached information will generate entries into the logs of the proxy server,
not the original site.
(^1527) See id. at 3.
(^1528) David G. Post, “Bargaining in the Shadow of the Code: File Caching, Copyright, and Contracts Evolving in
Cyberspace,” at 7 (paper presented at the University of Dayton School of Law Symposium on “Copyright
Owners’ Rights and Users’ Privileges on the Internet,” Nov. 1-2, 1996; copy on file with the author).
(^1529) At least one online service markets to website owners data about the number of page impressions delivered
from its cache. Schlachter, supra note 1526, at 3.