Clumsy law turns Kiwi Net surfers into copyright crims

You're doing it, we're doing it and your friendly ISP is doing it big time--we're all committing technical breaches of the Copyright Act, 1994.

Local Internet consultant Richard Ram has this week highlighted the rather dubious status of caching Web pages--that is, copying data to disk for future transmission.

In a press release posted to newsgroups, he suggested that under new copyright legislation, caching would now seem to be an infringement of the owner's copyright over those pages. Not only are ISPs unintentionally infringing copyright, but browser software used for viewing the Web pages also uses caching on individual users' machines.

Ram points out that the issue ceases to be a technical nicety when it comes to large-scale caching by ISPs--which save time and money by internally caching the contents of popular Web sites.

When this happens, the original owner of the Web site can no longer account for how many copies have been viewed and every user who has a page served from a cache, rather than directly from the original source is lost to the site's circulation figures. "The advertising revenue that could be gained from the site is diminished," Ram says.

"The owner of the page has lost control over the material and its revenue-earning potential."

Ram's musing seem to come as something of a shock to one Wellington intellectual property lawyer contacted by @IDG, who asked for time to study the question, before calling back to say there were a lot of interesting issues raised--"but I'd really prefer not to comment".

Aaron Davidson, of tech-savvy Auckland law firm Clendon Feeney, is both more familiar with the issues and more forthcoming. He confirms that, while holding data in non-permanent memory for viewing is permitted, the saving to a non-temporary medium which caching involves probably does breach the Copyright Act.

"Which is interesting, isn't it? Technically, we'd have to look into it further, but I don't think the drafters of the act were particularly forward-looking. This was not within their intention, I suspect."

While caching is a problem under New Zealand's copyright laws, it would not be so in Australia, where the law is more open and can roll with the blows. "Ours is more specific and the specifications tend to get left behind by progress."

Davidson agrees the Web site owner's loss of the ability to track usage of their copyright material is a "non-trivial issue".

"I know McNair and other people have been looking at ways to measure Internet usage. Ideally, you'd want to minimise caching, but practically I think all big sites are going to do it, especially businesses which have a lot of employees online."

Essentially, hard drives are cheap, bandwidth is not.

Reaction to Ram's suggestions in local Usenet newsgroups has varied from hostile to appreciative; but we aren't able to directly report what has been said. It's copyright ...

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