Digital Law Online: Caching

Subsection (b), service provider caching, exempts service providers’ making local copies of Web pages so that the pages don’t have to be fetched repeatedly over the Internet. Instead the cached copy is sent to their users. Service providers must honor any cache control requests provided by the communications protocol being used so that pages are not cached longer than desired by their creators, must not prevent the returning of information to the page creator about page usage, must honor password or other access controls, and must remove allegedly-infringing material if the material has been removed from its originating site.

It is important to note that this safe harbor applies only to the caching done by a service provider and not to that done by an end user. Any cached Web pages or pictures on a user’s machine would be addressed by fair use, if at all. Section 512 provides safe harbors only to service providers, and then only when the alleged infringing material is not supplied or used by the service provider or its employees.

The safe harbor applies when a service provider is providing “intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider” and:

(A) the material is made available online by a person other than the service provider;

(B) the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person; and

(C) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A), if the conditions set forth in paragraph (2) are met. {FN103: 17 U.S.C. §512(b)(1)}

Again, that is a straightforward description of how a cache operated by a service provider functions. But the caching safe harbor imposes some conditions on the caching system:

The material described in paragraph (1) is transmitted to the subsequent users described in paragraph (1)(C) without modification to its content from the manner in which the material was transmitted from the person described in paragraph (1)(A) {FN104: 17 U.S.C. §512(b)(2)(A)}

Congress recognized that a true cache holds just a temporary copy of the material so that it can be supplied to a user requesting it without having to fetch a new copy over the network.

The Committee intends that this restriction apply, for example, so that a service provider who caches material from another site does not change the advertising associated with the cached material on the originating site without authorization from the originating site. {FN105: Sen. Rep. No. 105-190 at 43}

The second requirement under the system caching safe harbor is that

the service provider described in paragraph (1) complies with rules concerning the refreshing, reloading, or other updating of the material when specified by the person making the material available online in accordance with a generally accepted industry standard data communications protocol for the system or network through which that person makes the material available, except that this subparagraph applies only if those rules are not used by the person described in paragraph (1)(A) to prevent or unreasonably impair the intermediate storage to which this subsection applies {FN106: 17 U.S.C. §512(b)(2)(B)}

This means that a service provider must comply with any standard cache control protocols, such as those specified in the HyperText Transfer Protocol (HTTP) that handles Web pages. Content providers use these rules to assure that outdated versions of a Web page are not supplied to a user from a cache, or to say that information should not be cached. But a content provider can’t use the cache controls in an unreasonable fashion.

The third safe harbor requirement is that:

the service provider does not interfere with the ability of technology associated with the material to return to the person described in paragraph (1)(A) the information that would have been available to that person if the material had been obtained by the subsequent users described in paragraph (1)(C) directly from that person, except that this subparagraph applies only if that technology—

(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; . . . {FN107: 17 U.S.C. §512(b)(2)(C)}

This requirement recognizes that some Web pages may contain advertising and the content provider is reimbursed by the advertiser based on the number of “hits” (accesses by users) to the page. If the cache simply returned the page to the user, the only hits that would be recorded would be those that read the page in a service provider’s cache. The provision encourages groups that set the standards for the Internet to come up with some way of accurately returning information about the usage of cached information to the content provider.

The Senate Judiciary Committee indicated that this requirement

provides that the service provider shall not interfere with the ability of certain technology that is associated with the work by the operator of the originating site to return to the originating site information, such as user “hit” counts, that would have been available to the site had it not been cached. The technology must: (i) not significantly interfere with the performance of the storing provider’s system or network or with intermediate storage of the material; (ii) be consistent with generally accepted industry standard communications protocols applicable to Internet and online communications, such as those approved by the Internet Engineering Task Force and the World Wide Web Consortium; and (iii) not extract information beyond that which would have been obtained had the subsequent users obtained access to the material directly on the originating site. {FN108: Sen. Rep. No. 105-190 at 43}

The fourth requirement for the safe harbor is that the person receiving the cached information must be entitled to receive it directly. A cache should not provide a way of bypassing an access control system for the material.

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. {FN109: 17 U.S.C. §512(b)(2)(D)}

Finally, the safe harbor imposes its own notice-and-takedown requirement.

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. {FN110: 17 U.S.C. §512(b)(2)(E)}

Congress recognized that the notice-and-takedown for a cached copy should be tied to the notice-and-takedown of the copy that was cached.

However, this take down obligation does not apply unless the material has previously been removed from the originating site, or the party submitting the notification has obtained a court order for it to be removed from the originating site and notifies the service provider’s designated agent of that order. This proviso has been added to subsection (b)(5) because storage under subsection (b) occurs automatically and unless infringing material has been removed from the originating site, the infringing material would ordinarily simply be re-cached. {FN111: Sen. Rep. No. 105-190 at 43}

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