Have you insulated yourself from expensive copyright lawsuits by registering a copyright agent with the United States Copyright Office lately? This advisory helps to explain some of the copyright issues associated with caching, linking, framing, and the Digital Millennium Copyright Act.
CACHING, LINKING, AND FRAMING
System "caching" refers to when a networked computer copies information from another computer to facilitate faster performance the next time the same information is requested. Once a particular piece of information has been cached on a system, the time required to display the information is reduced because at least part of the information to be displayed has previously been transferred across the network.
Internet "linking" occurs when one website links to another site via a typical Internet hyperlink, which is the highlighted text or pictures on a website that direct the user to another part of the same website or a new site altogether. Linking theories of copyright infringement (contributory and vicarious infringement) have been used to bring third parties into lawsuits simply because their websites linked to another site that contained infringement material. The question of "deep linking" has also been at the center of the linking controversies. Deep linking occurs when one website links to an internal page from another website by skipping the opening page from the same website. In deep linking cases the plaintiff usually alleges some form of unfair competition and/or false representation of affiliation; copyright claims also appear to be common in linking cases.
Internet "framing" happens when one website places the content from another website into a window-like frame appearing as part of the first website. The frame acts as a sort of portal to information on other websites without the person browsing the web having to actually go to a second website. Strategic use of frames can help keep on-line customers on a particular website and still allow the customers to gain access to other sites. Controversy often arises when the frame covers over adverting and branding appearing on the framed site. Claims ranging from copyright infringement to unfair competition and trademark dilution usually accompany allegations of unlawful Internet framing.
Due to a growing concern that some on-line businesses were, in some cases, being unfairly targeted for lawsuits based on "deep pocket" third party liability theories, e.g., contributory infringement, Congress has recently passed the Digital Millennium Copyright Act (the "Millennium Act"). The Millennium Act limits some copyright claims, against some on-line businesses, under certain circumstances.
There are four categories of copyright infringement liability limitations. The four categories are:
The "system caching" category1 limits the liability of service providers for the practice of retaining copies of material that has been made available online so that subsequent requests for the same material can be fulfilled by transmitting the retained copy, rather than retrieving the material from the original source on the network.
INFORMATION LOCATION TOOLS
The "information location tools" category2 relates to hyperlinks, online directories, search engines, and the like. This category limits liability for the acts of referring or linking users to a site that contains infringing material. The Millennium Act may cover copyright claims for framing by analogy to information location tools.
QUALIFYING FOR PROTECTION UNDER THE MILLENNIUM ACT
To qualify for copyright infringement liability protection under the Millennium Act on-line businesses must: