Advanced Copyright Law on the Internet

Netcom’s use of copyrighted material as part of its Usenet services, “though commercial, also
benefits the public in allowing for the functioning of the Internet and the dissemination of other
creative works, a goal of the Copyright Act.”^1533 The court noted that the commercial nature of
Netcom’s activity should therefore not be dispositive, concluding that “[b]ecause Netcom’s use
of copyrighted materials served a completely different function than that of the plaintiffs, this
factor weighs in Netcom’s favor.”^1534

In many instances, however, it may be unclear whether an OSP’s particular form of
caching serves a “completely different function” than that of the copyright owner’s use of its
material. For example, material may be cached from a source website and accessed by users
from the proxy server in exactly the same way that it would have been accessed from the original
server. The copyright holder might use this fact to distinguish the Netcom court’s holding with
respect to the first statutory fair use factor.

(b) Nature of the Copyrighted Work

The second statutory fair use factor looks to the nature of the copyrighted work. Fair use
rights are generally construed more broadly with respect to factual or published works than with
respect to fictional or unpublished works. Although all material available on the Internet is
published, such material varies tremendously as to its substantive nature. Thus, whether a
particular cached work is factual, fictional, or in between, will vary from case to case, and the
application of the second statutory factor to any particular instance of caching cannot necessarily
be predicted in advance.

In the Netcom case, the court held that the precise nature of the works at issue was not
important to the fair use determination “because Netcom’s use of the works was merely to
facilitate their posting to the Usenet, which is an entirely different purpose than plaintiffs’
use.”^1535 As noted with respect to the first statutory fair use factor, however, the same may often
not be true in particular instances of caching. Accordingly, it is difficult to say how the second
statutory factor may be applied to caching in particular instances.

(c) Amount and Substantiality of the Portion Used

The third statutory fair use factor looks to the amount and substantiality of the portion
used in relation to the copyrighted work as a whole. Caching routinely involves the making of
copies of entire Web pages, which may in turn contain entire copyrighted works,^1536 so in many
instances all or a substantial portion of a copyrighted work will be copied in the course of
caching. Generally, no more of a work may be copied than is necessary for the particular use.^1537

(^1533) Id. at 1379.
(^1534) Id.
(^1535) Id.
(^1536) Schlachter, supra note 1526, at 4.
(^1537) See, e.g., Supermarket of Homes v. San Fernando Valley Board of Realtors, 786 F.2d 1400, 1409 (9th Cir.
1986).