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Q: Serving "cached" webpages, and copyright law ( Answered 5 out of 5 stars,   1 Comment )
Question  
Subject: Serving "cached" webpages, and copyright law
Category: Computers > Internet
Asked by: basbryan-ga
List Price: $100.00
Posted: 18 Nov 2003 20:57 PST
Expires: 18 Dec 2003 20:57 PST
Question ID: 278097
I often save copies of web pages that I view as I surf the Internet
for later reference.
I read a large number of tutorials and how-to guides, and there is no
way that I can recall
all of the data that is in them.

The reasons why I save these pages, rather than just keeping a link to
them in a favorites
folder, are that sometimes the pages get moved, modified, or the
server is temporarily offline.
Thus, I save these pages to my disk, for later reference.

I recently wanted to access one of these pages remotely, while away
from my desktop, and I
considered making them available as a directory that was linked from my webpage.
I was thinking that others might want to view these pages as well.

Then I began to read about copyright law and had some questions that I
cannot find satisfactory
answers to:

1. Can I as a web surfer legally save copies of webpages that I view
for later personal reference?

2. Can I make this collection of pages available to the public, as
long as I credit the original
authors or sponsors?

3. If I cannot preserve a copy of the page, could I preserve the
content of the page for the public, assuming that I provide
appropriate references to the original authors or sponsors?

Now I need to stress here, that I have no intention of altering or
linking these pages in such a way
that any reasonable adult would have any questions at all as to who
the original authors or sponsors
were.  I have no desire to take credit or gain profit from the property of others.

I also have no intent of serving these pages in frames that carry
advertisements for products,
services, or that obscure who or where this pages content came from.

In fact, I don't really
want to modify the pages in anyway, other than post a 2-line notice at
the top of each
page that CLEARLY indicates that the currently viewed content is a
page that I "cached"
and a link to the URL from which I origianlly obtained the page.  I would also like
to include an email address where the original authors of a page that I have cached
could request for me to remove their page from my cache.  I only
desire to save and serve copies of pages that
I find useful for the posterity of the web community as a whole.

I am somewhat aware of the segments of copyright law that relate to
the reproduction and distribution of intellectual
property, but I find the literature that I have read lacking specific
detail in regards to how these laws relate to
the Internet.

A good answer to this question might contain links to reliable sources of copyright
advice as it relates to the internet; links and researcher summaries
of webpages that cover specific
examples of copyright lawsuits involving webpage content; or cite,
link, and summarize actual legal
documents from the government relating to copyright law, caching, and webpages.

I realize that google answers cannot give me formal legal advice, and
am not asking for such.
What I really want is for someone else to spend sometime researching
this topic, without my
interference, comment on what they find, and of course, provide me
with links to where this
data came from.  And some links to certified legal specialists in this
area would also be helpful.
Answer  
Subject: Re: Serving "cached" webpages, and copyright law
Answered By: serenata-ga on 20 Nov 2003 08:51 PST
Rated:5 out of 5 stars
 
Hi Basbryan ~

As you can imagine, copyright issues relative to the Internet aren't
always clearcut, but there are resources and information available on
the Internet to keep yourself out of hot water when it comes to
intellectual property rights, copyright and copyright infringement.

Despite Google's disclaimer at the bottom of this page and your own
acknowledgement, "I realize that google answers cannot give me formal
legal advice, and am not asking for such", I'm going to toss in my own
disclaimer that my answer is not legal advice.

The answers to your questions may contain advice, but this is strictly
my own opinion based on information provided. You asked for a "comment
on what [I] find", which is what I have attempted to do below.

I'll also provide a 'quickie' answer to your question, and then
elaborate on how I arrived at each below the answers.



======================
Quickie Q&A
======================

Question 1:
-----------

"Can I as a web surfer legally save copies of webpages that I view for
later personal reference?"

Answer:
You can legally save a copy for your own use for reference or
research. This would certainly fall within the "fair use doctrine".
While the courts have been reluctant to narrow the scope of fair use,
to maintain a copy for your own reference would not be deemed
unreasonable. Further discussion of the Fair Use Doctrine is discussed
below.


Question 2:
------------

"Can I make this collection of pages available to the public, as long
as I credit the original authors or sponsors?"

Answer:
The pages, whether or not they exist now, are copyrighted. If you make
them available without permission, you're infringing on the rights of
the copyright holders. There are a few exceptions, such as libraries
and archives, which are discussed below.


Question 3:
-----------

"If I cannot preserve a copy of the page, could I preserve the content
of the page for the public, assuming that I provide appropriate
references to the original authors or sponsors?"

Answer:
No, for the same reason as No. 2 above.



========================
Copyrights In General
========================

As a general rule, any original work - whether text, visual art,
photos or music - is protected by copyright law, which means that you
may not reproduce it without permission from the copyright owner.

This, of course, includes web sites which are placed on the Internet.

Giving credit or thanks to the copyright owner does not change that;
you are not allowed to reprint (or distribute, adapt, perform or sell)
the work without the owner's authorization. Reproducing, republishing
or copying the work without permission is copyright infringement.

Thomas G. Field, Jr., Professor of Law, Franklin Pierce Law Center in
Concord NH, begins his courses on the Internet and Intellectual
Property by stating,

     "Copyright gives authors or artists the legal right to
      exclude others from using their works. It arises
      automatically when a protectable work has been fixed in a
      tangible medium such as a floppy disk or hard drive. A poem
      or picture is as much protected on a disk as on a piece of
      paper or canvas."
   - http://www.piercelaw.edu/tfield/copyNet.htm


Professor Field expressly addresses the issue of website content and explains,

     "The entire contents of a web site no more require multiple
      registrations than a book with many chapters and numerous
      illustrations -- or a CD with text and music, still and
      animated graphics, and software. Copyright Office Circular
      66 contains a brief discussion."
   - http://www.piercelaw.edu/tfield/copyNet.htm


Circular 66, "Copyright Registration for Online Works", offered by the
Library of Congress, can be found here:
   - http://lcweb.loc.gov/copyright/circs/circ66.pdf


While there is a question about revisions to a page and whether or not
the 'newer' content is included in actual copyright registration,
there is no question that the cached pages in your possession are
copyrighted material.

From your questions, it is easy to discern the above information is
not new to you; however, it does bear mentioning that Intellectual
Property and copyrights in relation to websites, as well as Usenet or
group postings and e-mail, have been recognized and information
disseminated about the right to reproduce them.

The general advice about republishing these works is to assume it is
protected and obtain permission - it is better to be safe than sorry.



=======================
Fair Use Doctrine
=======================

Fair use is a limitation on the exclusive rights of copyright holders,
and allows consumers to make a copy of part or all of a copyrighted
work, even if the copyright holder hasn't given permission.

For your information, the "Fair Use" laws can be found online at
U.S.C. 17  107, "Limitations on exclusive rights: Fair use"
   - http://www.copyright.gov/title17/92chap1.html#107


Wading through the code can be tedious, but a plethora of articles are
available to help clarify the "Fair Use Doctrine". There is a broad
swath when it comes to the definition of fair use, making it difficult
to discuss it here intelligently. The courts have continuously applied
the Fair Use Doctrine on a case-by-case basis, and have generally
declined to narrow its definition.

     "The difficulty in claiming fair use is that there is no
      predictable way to guarantee that your use will actually
      qualify as a fair use. Millions of dollars in legal fees
      have been spent attempting to define what qualifies as a
      fair use. There are no "definites," only general rules and
      varying court decisions. That's because the judges and
      lawmakers who created the fair use exception did not want
      to limit its definition too narrowly."
      [From Nolo Law Center article, "Getting Permission to
      Publish: Ten Tips for Webmasters"]
   - http://www.nolo.com/lawcenter/ency/article.cfm/objectID/8CD796F2-9770-4ECA-B8F2B4F66DB170F1/catID/1D5464D1-2A36-45C3-95897F115FEEB097


A concensus exists on what is generally deemed fair use:

    * Criticism and comment
    * News reporting
    * Research and scholarship
    * Nonprofit educational uses
    * Parody

and anything else can safely be considered not to be a fair use.


In truth, it is hardly so cut and dried. Issues can quickly become
muddied when it comes to technology, because a strict adherence to the
letter of the law would technically mean that the very act of browsing
to a website, since it is literally copied and downloaded to your
computer, becomes a violation of copyright law.

Carl Oppedahl, of the law firm of Oppedahl & Larson, LLC, is
considered an expert in the field of the Internet and intellectual
property. He has published excellent information on the matter of
websites, browsers and technology in which he addresses the matter of
"implied license":
 
     "No discussion of copyright and the Web would be complete
      without at least a mention of the notion of "implied
      license". For example, when I use my web browser to view a
      site, I am necessarily copying information from that site
      to the screen of my computer. Many web browsers have
      "cache" capabilities, in which case I am also necessarily
      copying the information into the cache as well. Most
      browsers have the capability to print what is on the screen,
      so if I print it I am automatically making a copy of it on
      paper."
   - http://www.patents.com/weblaw.htm#cpe


and summarizes the article with this sage advice:

     "Common sense suggests that if a webmaster has placed a
      copyright notice so that it is seen by visitors to a web
      site, then the webmaster probably is trying to communicate
      to the public that the contents of the site are not to be
      freely copied in all ways. Of course ... the absence of a
      copyright notice does not mean a site is not protected by
      copyright."
   - http://www.patents.com/weblaw.htm#cpe


The Nolo Law For All website has an article, "When Copying Is Okay:
The "Fair Use" Rule", which explains the exceptions above and has an
inset with "five basic rules to keep in mind when deciding whether or
not a particular use of an author's work is a fair use:

     "Rule 1: Are You Creating Something New or Just Copying?
      Rule 2: Are Your Competing With the Source You're Copying
              From?
      Rule 3: Giving the Author Credit Doesn't Let You Off the
              Hook
      Rule 4: The More You Take, the Less Fair Your Use Is
              Likely to Be
      Rule 5: The Quality of the Material Used Is as Important
              as the Quantity"
   - http://www.nolo.com/lawcenter/ency/article.cfm/objectID/C3E49F67-1AA3-4293-9312FE5C119B5806


And the Electronic Frontier Foundation (EFF) addresses the issue,
devoting an entire page to "Fair Use Frequently Asked Questions (and
Answers)"
   - http://www.eff.org/IP//eff_fair_use_faq.html


EFF takes a more pragmatic in their approach to fair use, citing Sony
Corporation of America v. Universal City Studios, 464 U.S. 417 (1984,
S.C.), in which "time-shifting (for example, private, non-commercial
home taping of television programs with a VCR to permit later viewing)
is fair use."
   - http://www.eff.org/IP//eff_fair_use_faq.html


If you adapt the letter of the law, your retaining a cached copy of
the those web pages is "iffy", but the fact that you use them "for
reference" would probably qualify as 'fair use', or at least not be
worth sueing over.



=============================
But wait ... there's more!
=============================

At this point, I'm going to *heartily* suggest and *strongly*
recommend you get permission. It is the easiest and least risky way to
be able to share those sites you feel are important without getting
yourself in trouble for copyright infringement.

The second-best way might be to see if those cached copies are
included in The WayBack Machine and link to them (LINK, not include
them) on your own site. You can at least see if they're included in
the archives here:
   - http://www.archive.org/web/web.php


Bear in mind, though, that the WayBack Machine is not without its
share of controversy, either. "Located in San Francisco, the [WayBack
Machine] Archive is a 501(c)(3) public nonprofit whose benefactors
include Alexa Internet, AT&T Research, Compaq, the Kahle/Austin
Foundation, Prelinger Archives, Quantum DLT, Xerox PARC, the Library
of Congress, and the National Science Foundation."
   - http://archive.org/about/press_release.php


There is no guarantee that your pages will be cached by the WayBack
Machine, because some people object to their copyrighted material
being displayed in this fashion. The operators of the WayBack Machine
will remove material when requested to do so. They also do not archive
material that has a robot.txt prohibition against archiving. So far,
no one has challenged WayBack Machine's status as a library or
archive, as they readily acquiesce and remove content when asked.

You can read a lengthy discussion thread on Slashdot, which is fairly
representative of the WayBack Machine/cache controversy here:
   - http://ask.slashdot.org/askslashdot/02/06/19/1744209.shtml


The WayBack Machine encourages your linking to its archived copies,
and it might be easier for you to cite the link from the WayBack
Machine than it is to track down and get permission.



========================================
The DMCA and Other Copyright Confusion
========================================

The Digital Millennium Copyright Act (DMCA) provides a "safe harbor"
as an incentive for ISPs to take down user-posted content when they
receive cease-and-desist letters for copyright infringement.  By
removing the content, or forcing the user to do so, an ISP can take
itself out of the middle of any copyright claim.

All that is necessary is a notice to the ISP that a website hosted
there contains copyrighted material without permission. The Chilling
Effects website explains the procedure:

     "In order to have an allegedly infringing web site removed
      from a service provider's network, the copyright owner
      must provide notice to the service provider with the
      following information:

      * The name, address, and electronic signature of the com-
        plaining party [512(c)(3)(A)(i)]
      * The infringing materials and their Internet location
        [512(c)(3)(A)(ii-iii)]
      * Sufficient information to identify the copyrighted works
        [512(c)(3)(A)(iv)]
      * A statement by the owner that it has a good faith belief
        that there is no legal basis for the use of the materials
        complained of [512(c)(3)(A)(v)]
      * A statement of the accuracy of the notice and, under
        penalty of perjury, that the complaining party is
        authorized to act on the behalf of the owner.
        [512(c)(3)(A)(vi)]"
   - http://www.chillingeffects.org/dmca512/faq.cgi


It would only take one of the copyright holders of those cached pages
to complain to your ISP, and your site could be shut down. While you'd
be notified pursuant to the provisions of the DMCA, it wouldn't be
until *after* that happened. It's YOUR site, and you are the only one
who can determine whether the risk of including that information on
your site without permission to do so is worth the potential risk.



============================
Site Cites and Discussion
============================

1. "Implied Limitation" & Personal Caching
------------------------------------------

I cited Carl Oppedahl above, there's a discussion thread, "Caching and
copyright", which doesn't really address your issue of a person
posting cached material; however, it does point out that there isn't
enough case law to even decide the issue of personal caching done with
"typical internet usage" and pages written to "HTML specifications".
It is presumed personal caching is within "implied limitations" of the
Fair Use Doctrine, but no one has actually tested it. The fact it's
done doesn't mean it would necessarily hold as being legal.

You can read the thread (it's fairly brief) on the Educause website here:
   - http://www.cni.org/Hforums/cni-copyright/1995-04/0407.html


2. Archive.org - The WayBack Machine
------------------------------------

This is closer to what you are asking. Archive.org took all the
necessary steps to qualify as both a non-profit organization and
declare itself an archive/library. It has backing from such dignified
names as the Smithsonian, etc., and yet they'll remove a site on
request with no questions asked, which might indicate they're not sure
they're on terra firma when it comes to their displaying cached pages
under the Fair Use Doctrine.


3. Articles on Internet & Copyright
------------------------------------

There are several good articles about Internet copyright issues. Most
contain the same or similar information as I've given above.

There is no problem establishing that a web site's content is
copyrighted, and there is a great deal of discussion on what
constitutes "fair use" and under what circumstances those contents can
be used elsewhere without the express permission of the copyright
holder. The same holds, though, for other media and material, and the
concensus is that it really is a case-by-case decision by the courts
on how much is too much so far as fair use is concerned.

Some of those articles are listed below:

   * "Getting Permission to Publish: Ten Tips for Webmasters"
   - http://www.nolo.com/lawcenter/ency/article.cfm/objectID/8CD796F2-9770-4ECA-B8F2B4F66DB170F1/catID/1D5464D1-2A36-45C3-95897F115FEEB097

   * "When Copying Is Okay: The "Fair Use" Rule"
   - http://www.nolo.com/lawcenter/ency/article.cfm/objectID/C3E49F67-1AA3-4293-9312FE5C119B5806

   * "10 Big Myths about copyright explained" by Brad Templeton
   - http://www.templetons.com/brad/copymyths.html

   * "Fair Use Guidelines" (Groton's Copyright Information on
      the Internet)
   - http://www.groton.k12.ct.us/mts/pt2a3.htm

   * Stanford Universities Libraries "Copyright & Fair Use"
     (contains scores of resources on the subject matter, mainly
     addressing Internet issues)
   - http://fairuse.stanford.edu/web_resources/articles.html

   * Findlaw's "Copyright Law and the Internet: Selected Statutes
     and Cases"
   - http://library.lp.findlaw.com/articles/file/00053/005779/title/subject/topic/intellectual%20property%20law_copyright/filename/intellectualpropertylaw_1_233#CASELAW

   * Discussion on Slashdot.com regarding the legality of caching
     by search engines and archive.org/WayBack Machine
   - http://ask.slashdot.org/askslashdot/02/06/19/1744209.shtml

   * Salon article, "Dumpster diving on the Web", by Katharine
     Mieszkowski, November 2, 2001. [also about the WayBack
     Machine and its potential for litigation]
   - http://archive.salon.com/tech/feature/2001/11/02/wayback/print.html


4. A closer look at the Digital Millennium Copyright Act (DMCA)
---------------------------------------------------------------

Chilling Effects is a revealing website with a ton of information on
the DMCA. Although it may seem to be a bit 'liberal' in nature, it
does present information on recent events in which "Cease and Desist"
letters and subpoenas have been issued for copyright infringement.

Chilling Effects presents an interesting contrast between what might
perceived as the public's right to know and/or freedom of the press
and claims of copyright and copyright infringement. If nothing else,
it's a sobering look at how hard it might be to defend or fight a
claim of infringement.

The site is appropriately named, as some of the subject matter seems
as though it *should* be exposed, such as the Diebold voting booth
problems (basically, internal memos on the voting booth innacuracies
and reliability problems which were published on the internet), and
how and who were intimated by DMCA cease and desist letters and
removed the content. The public's "right to know" about something so
basic as a citizen's right to vote seems to be overridden by claims of
copyright infringement and intellectual property issues.

An article in PC World, "Dispute Tests Limits of Free Speech Online -
Universities could find themselves censoring students to obey
copyright law", by Paul Roberts, IDG News Service, November 05, 2003,
explores the issue pretty thoroughly. You can read it here:
   - http://www.pcworld.com/news/article/0,aid,113301,00.asp


The Chilling Effects website is here:
   - http://www.chillingeffects.org/

Discussion, articles, news and FAQs on the DMCA can be found under the
"DMCA Safe Harbor Provisions" here:
   - http://www.chillingeffects.org/dmca512/


Warning: This is not a site you can just glance at and move on. It is
one of those that you'll want to spend time looking over, although the
results may be "what the heck am I doing on the Internet???"



======================
Legal Experts
======================

You also stated "... some links to certified legal specialists in this
area would also be helpful." I am uncertain what you mean as
"certified", but the names below are certainly recognized as
authorities in the field of intellectual property and copyright law.


1. Ivan Hoffman, B.A., J.D.
   Attorney at Law
   Internet and Intellectual Property Law

   "The Fundamental Principle Under United States Copyright Law"
   - http://www.ivanhoffman.com/fundamental.html

   "Internet And Electronic Rights Issues"
   - http://www.ivanhoffman.com/internet.html

   "Articles For Web Site Designers And Site Owners"
   - http://www.ivanhoffman.com/web.html


2. Carl Oppedahl, Jr.,
   Oppedahl & Larson, LLC

   "General information about copyrights"
   - http://www.patents.com/copyrigh.htm

   "Web Law FAQ"
   - http://www.patents.com/weblaw.htm


3. Mark Radcliffe, Partner
   Gray Cary Ware & Freidenrich LLP

   "Copyright Law" (on FindLaw)
   - http://profs.lp.findlaw.com/copyright/index.html


4. Independent consultant:
   Thomas G. Field, Jr.
   Professor of Law
   Franklin Pierce Law Center

   Franklin Pierce Law Center, "Copyright on the Internet"
   - http://www.piercelaw.edu/tfield/copyNet.htm#lim



===========================
So What Does It all Mean?
===========================

While it may seem that I had drifted off the beaten track with my
lengthy discussion of the Fair Use Doctrine, it really isn't the case.

The copyright issue is pretty clear, and your question indicates you
are aware of that. In a nutshell: If you didn't create it, you don't
own the copyrights, and you need to get permission from the person or
entity that does before you can reproduce or republish it.

The use of cached and other 'previous' versions are also protected by
copyright law; and unless you can qualify under the Fair Use Doctrine,
you can't publish the cached versions without the express permission
of the creator/copyright holder, either.

If you do so, the copyright holder can invoke a Cease and Desist under
the DMCA. In order to keep from being held responsible for your
actions, your host has no choice but to close down your site under the
"Safe Harbor Provisions" of the DMCA.

Ultimately, you are the one who will decide whether you want to risk
the possible consequences of publishing those cached copies on your
website.

Once again, my advice is to get permission first. If you can't, see if
they are a part of the WayBack Machine and link to them there. I think
to do otherwise is leaving yourself open for more problems than your
publishing the cached material would be a help.


Search strategies:

   Google search -
   * Internet + copyright
   * copyright lawsuits + internet
   * fair use doctrine
   * intellectual property

   FindLaw search -
   * copyright
   * intellectual property


Thank you for asking this question - these are issues I need to keep
current, and this afforded me that opportunity to 'brush up my
copyright'.

Best regards,

Serenata
Google Answers Researcher
basbryan-ga rated this answer:5 out of 5 stars
I appreciate all of the links.  Great job!
btw I "cached" this page for future reference :-)

Comments  
Subject: Re: Serving "cached" webpages, and copyright law
From: larre-ga on 20 Nov 2003 10:12 PST
 
Specifically covering copyright and commercial caching as a direct
issue, you might find the following recent articles (July, 2003) fill
in a few of the blanks.

Google Cacheing and Copyright
http://news.com.com/2100-1032_3-1024234.html

Using Caching for Growsing Anonimity
http://news.com.com/2100-1032_3-1024234.html

---larre
Google Answers Researcher

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