Is a caching-service for websites a breach of copyright ?

[CoolDot]

Hello,

I seem to have the most impossible questions lately ) Sorry about that... )


But I happen to own a domain called

TheBigArchive.com

and would like to offer a service to the public on them and I am not sure my plan is legal.



The problem:
A lot of science is published on the net these days. Science works by citing other, previous publications. The average lifespan of an internet website is 100 days. After that, the page is often deleted or moved which leaves a lot of broken links.

My solution:
So my plan is to allow anybody to suggest a site for archiving,
my server would parse the site and duplicate it on our server.

Finer details would allow the owner of the cached site control over the content and even possibly allow him to delete the cached site. I would also allow for several versions of the site to allow updates to be submitted too.



I am not quite sure yet, how my site would make money. Possibly ask for a small fee ($1) per submitted site... (not from the owner of the site, but from the guy who submitted it for caching, after all I am giving him a permanent link he can rely on, which is a service).


My question:
Would this business idea be legal? Would I violate copyright by storing these sites on my servers?

Please work on the assumption, that I am not just trying to grab the original site's traffic, whenever possible I would of course jump directly to the site-owner's current page. Only in case it is taken down or moved would I serve up my cached pages.


Other caching providers:
a) Site caching is done permanently by browsers.
b) Yahoo serves up cached sites upon request
c) There are sites out there that provide a history of the internet

So is site-caching in this way legal, or does it violate the copyright of the original site-owners?

Thanks a lot for your comments!

Kind regards
CoolDot

 

[bidawinner]

Opt in Archive.. I Like it .. good luck Cool Dot...

 

[Nexus]

http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm#test

• What is the character of the use?
• What is the nature of the work to be used?
• How much of the work will you use?
• What effect would this use have on the market for the original or for permissions if the use were widespread?

A good place to start...

~ Nexus

 

[CoolDot]

Thanks for the heads up bidawinner!

• What is the character of the use?
• What is the nature of the work to be used?
• How much of the work will you use?
• What effect would this use have on the market for the original or for permissions if the use were widespread?

A good place to start...

>1. What is the character of the use?
To make sure that links to referenced (science-) documents will always be active.

>2. What is the nature of the work to be used?
Science documents, important news stories, other documents that are relevant and important for future reference.

>3. How much of the work will you use?
Only those parts that are not online anymore in their original locations. Theorethically that could be up to 100%.

>4. What effect would this use have on the market for the original or for permissions if the use were widespread?
It would be appreciated, referenced and valued for much longer than the current average lifetime of websites. The value would increase as linking to a document could be done reliably because it will be guaranteed that these links will always work.

Counterquestion:
In what way do you deminish the copyright-owner's rights or profits?

a) The documents would be immediately cached without consent of the author. But the author will later have the right to retract certain versions of the document or point links of old versions to the newer version

b) A permantently visible marker would be kept to mark deleted or modified/updated documents

c) Old versions even of retracted documents would be kept in storage for a time when copyright expires and the document goes back into the public domain (upon which time even retracted documents would be accessible again).

d) A site-internal search engine would be filled with the keywords of the documents and this way a scientific database of valid links to documents (either at the author's original location or as cached pages on our server) would gradually be built up. This search-engine would use the generated traffic to generate profits.
These profits will not be shared with the authors but be a compensation for a valuable public service.

The website would also build up a name for itself much in the same way a museum builds up a name for itself derived from other people's works.



I got a good feeling about my intended use but it would be nice to hear a heads up from any of the lawyers here...

And of course, if anybody here wants to partner up with me to create that archive, he's warmly invited to PM me...

Thanks a lot for all comments and thoughts.

CoolDot

 

[namedropper]

Bad idea.

You can't just decide to control copyrighted materials owned by other people and try to do it as an opt-out service. Legally it's very shaky ground, and only the biggest of companies (like, say, Google with its cache) can hope to fend off the inevitable lawsuits.

Profiting off their copyrights makes it a definite no-no.

"a) The documents would be immediately cached without consent of the author. But the author will later have the right to retract certain versions of the document or point links of old versions to the newer version"

Translated means "I will immediately violate the law but will allow the owners of the material to be able to go to the hassle of telling me that they don't want the law broken." You are creating an unreasonable burden on the legitimate owners of the material so nonowners of the material can profit.

"c) Old versions even of retracted documents would be kept in storage for a time when copyright expires and the document goes back into the public domain (upon which time even retracted documents would be accessible again)."

Translation: "Even if told I am breaking the law, I will continue to break the law by keeping an unlawful copy of the material." Claiming that you are only holding onto it so that you can publish it when the copyright expires is hopelessly naive, as odds are that you'll be dead long before the copyrights on ANY of those articles expire.

"This search-engine would use the generated traffic to generate profits.
These profits will not be shared with the authors but be a compensation for a valuable public service."

Translation: "I knowingly intend to profit off the copyrights of other people before gaining permission and do not intend to compensate the owners of this material in any way."

This plan is an EXTREMELY BAD IDEA. You open yourself to lawsuits from every direction and have no legal legs to stand on.

 

[namedropper]

And your arguments are so flawed that I can't resist further comment upon your earlier remarks...

Originally posted by CoolDot
1. What is the character of the use?
To make sure that links to referenced (science-) documents will always be active.

Try that same statement with the phrase "(science-) documents" replaced with "full text of science books" or "the valuable contents of The Wall Street Journal" or "all this great info in the current edition of the Encyclopedia Britannica" or etc. That's not at all an acceptable defense in a copyright lawsuit.

>3. How much of the work will you use?
Only those parts that are not online anymore in their original locations. Theorethically that could be up to 100%.

Fair use generally only covers very small portions of works, and then only for valuable public purpose, like review or criticism. Copying the entire thing because the owner doesn't want to provide a free copy to the public anymore is not a justification that will fly at all.

>4. What effect would this use have on the market for the original or for permissions if the use were widespread?
It would be appreciated, referenced and valued for much longer than the current average lifetime of websites. The value would increase as linking to a document could be done reliably because it will be guaranteed that these links will always work.

No, that's the value to YOU as the copyright infringer or to the other sites who link to the content. We're looking for the value to the OWNER. You are missing the very important point that free distribution of their material completely kills any money they could make on it.

I got a good feeling about my intended use

Run, don't walk, to any library with any books about copyright law and do some basic reading before you trust your feelings in this matter.

but it would be nice to hear a heads up from any of the lawyers here...

You know, believe it or not, lawyers normally expect to get paid for saving your ass legally. But then if you think you can use other people's articles for free without permission, it doesn't surprise me that the concept of paying for an informed legal opinion by a licensed professional before embarking on a potentially troublesome business decision is foreign to you.

No offense, but, wow.

I may come off as sounding harsh, but you obviously need a strongly worded statement to get you to realize just how much trouble you could get yourself into.

 

[lotsofissues]

Originally posted by namedropper
And your arguments are so flawed that I can't resist further


You know, believe it or not, lawyers normally expect to get paid for saving your ass legally.


No offense, but, wow.

He needed a simple answer no more urgent then anyone of the other hundreds of people who sought answers in the legal forum. There was no need to make such an arrogant and self indulgent response.

 

[CoolDot]

namedropper, no offense taken, quite the contrary. I am glad I got my plan straightened out before I actually tried to go down that road. So thanks for that, even if it was in harsh words. Better now then be in big trouble later.


and lotsofissues, thanks for your comment also, no problem with getting a few harsh words in my direction. That's what I expect from a legal forum. I didn't want the nicy nice anyway, if I wanted that then I would not ask for legal opinions here.

Basically I got a bad idea and got told so. And that's good. Saves me a lot of troubles later.

Thanks guys!

Am currently on a slow connection, so you won't hear from me much during the holidays.

Happy thanksgiving to all!
CoolDot

 

[namedropper]

Originally posted by lotsofissues
He needed a simple answer no more urgent then anyone of the other hundreds of people who sought answers in the legal forum. There was no need to make such an arrogant and self indulgent response.

It's neither arrogant nor self-indulgent to answer the questions he asked and point out serious flaws in his logic.

But thank you for your valuable input.

 

[jberryhill]

"He needed a simple answer"

Unfortunately, it is not a simple question.

While a legal topics discussion forum is a great place to discuss hypothetical questions and legal topics generally, it is an awful place to seek answers to specific questions of actual concern.

There are reasons why consultation with an attorney is afforded a number of legal privileges. Avoiding shooting yourself in the foot in public is one of them.

A second, and more important problem, is that most people don't realize the sort of liability that an attorney can incur by answering specific, real questions in a public forum. While attorneys are encouraged by various codes of practice to promote public awareness and education in the law, providing specific legal advice is a problematic area. This typically arises in connection with the "radio call-in show" type of situation, where an attorney might take general questions about taxes, estate planning, and the like.

First, most questions in such fora, and this is no exception, are under-determined. By that, I mean that they are missing any number of operative facts or things that the questioner didn't bother to mention, that could be outcome determinative. These kinds of things would come out during an actual interview with a client.

Second, an attorney would be nuts to provide specific legal advice to a person in a public forum, and thereby to shoot the privilege and confidentiality protections to pieces. This is why, as I mentioned before, I do not take engagements based on public discussions on DNForum. This is closely related to one of my greatest pet peeves about some attorneys, which I will reduce to a simple proposition for the consumer of legal services - If you ever see your attorney on Larry King Live talking about your case, then fire him/her immediately. An attorney who attempts to obtain media attention for your case is NOT working for YOU.

Third, many people are unaware that attorneys cannot limit their personal liability for malpractice. What might be a "simple question" to you looks like this to an attorney:

"Hi, I'd like you to put your house, your car, your childrens' futures, and your entire career and livelihood on the line for absolutely nothing in return. So, I'm going to give you a couple of facts, leave out potentially highly relevant other facts, get an answer from you, and then come back and sue you a year from now for everything you own. Okay?"

Uh, no. Particularly, not in an area where technology has moved much, much faster than the rate at which legal decisions can catch up. It is one thing to use questions as a jumping-off point for discussing the types of issues that would be relevant to the questions. It is quite another thing to incur the kind of liability risk that is a component of the cost of legal services for nothing in return.

The basic issue - "Can I copy and store other people's stuff?" is, as a general matter, a no-brainer. In general, no, you can't. When you want to copy something, that is the starting point. It is not a matter of "Can you show me why it is wrong" - it is a matter of "Is there a reason why it would be okay." Anyone who has the luxury of not having their assets on the line is, of course, free to give breezy answers to why it might be okay. A common answer to this kind of question is "X does it and they seem to be doing fine". Yes, X might be doing it. There are smokers who have not, and indeed will not, contract any illness as a result. This does not make smoking, in general, safe.

As far as caching by browsers goes, there have been specific decisions in the copyright law that deal with automated caching pursuant to authorized electronic distribution of material online. This is not that.

Waiting until the copyright expires is not realistic or practical, since you will be long dead before that happens with anything published in your lifetime. The current term of US copyright protection is the life of the author plus seventy years, or December 31, 2047, whichever is greater. Live long, and prosper.

Archive.org takes several practical approaches to dealing with this question. First, they respect archiving agent exclusions in the robots.txt files of the sites they archive. Second, they permit copyright owners to have material removed from the archive. Do thes provisions protect them from all potential liability? No. But they *might* allow them to head off a problem before it rises above their pain threshold.

As was noted in a related thread some time ago, there are certainly websites which make "current content" available for free access, but charge for archival search and retrieval. That is a perfectly legitimate thing for a copyright owner to do. Permanently making such content available elsewhere would frustrate the legitimate ability of the copyright owner to exploit their ownership of the material.

 

[LewR]

How does http://www.archive.org get away with this then?

Is it enough to place "do not spider" code on your site and if you do not - you are free game?

Just some thoughts - not facts .....

 

[jberryhill]

"How does http://www.archive.org get away with this then?"

Read the paragraph above beginning with "Archive.org takes several practical approaches".

You might also read the last few paragraphs at:

http://www.archive.org/about/terms.php

which provides further detail.

Do these things protect them from liability? It is an open question - they haven't been sued yet.

 

[CoolDot]

jberryhill, how does www.archive.org get away with it...

Yes, and what about the WayBackMachine.com which does exactly what I proposed. How is it possible that nobody has sued them yet (to my knowledge)? Are they running a non-profit organisation possibly? Might that be why?

Thanks for all your input...
CoolDot

 

[jberryhill]

The Way Back Machine and Archive.org are the same entity.

Is there an echo in here?

Non profits get sued just like anyone else. Whether archive.org has ever been sued is not necessarily something that you'd read about in the papers, if that's what you think.

-----------
In September 2002, lawyers for Scientology contacted the administrators of the Wayback Machine (archive.org) and asserted ownership of certain materials archived as historical contents of the Operation Clambake site. In response, the Wayback Machine administration removed the archive of the entire Clambake site, initially posting a false claim that the site's author had requested its removal. This claim has been removed but (as of October 2002) the archive remains removed.
---------------

People bring copyright suits to stop copying. If Archive.org regularly knuckles under, then that may satisfy most of the people who threaten them. Is that a foolproof legal strategy that will keep you out of paying damage awards? No.

Archive.org receives a lot of foundation support and would likely be able to obtain pricy legal support if someone wanted to go to the mat with them. Would that keep them from being found liable? No. It might deter someone from a protracted fight over stuff they have already taken down, but what they are doing remains, at its core, wholesale copying of stuff without the copyright owner's permission.

 

[CoolDot]

>The Way Back Machine and Archive.org are the same entity.
>Is there an echo in here?

Why do you wonder about that, considering the mountains of lacking knowledge I display here? )


>but what they are doing remains, at its core, wholesale copying of stuff without the copyright owner's permission

Ok. Without wanting to be sarcastic (at least not a lot ) ),
that means if you have enough financial firepower to be able to afford one or the other top-lawyer then you can actually create a website that breaks copyrights by the dozen?

And if you are a poor guy like me you can't do the same?

So two different PRACTICES of the law according to who you are?

Where is Garry Anderson when you need him!!! ))

But seriously, I think I get the message. You got the money, the lawyers, the disclaimers and all of that and you can go to quite some length to do your stuff. But when somebody actually attacks on a solid legal basis they are in not much a better situation that I would be and basically they have to cave in.

I think that takes care of that plan of mine )


One last question before I stop nagging around here...

Isn't EVERY search-engine, and especially every search-engine that indexes all the pictures on the web, violating copyright constantly? They extract stuff, cache it, display it and make a lot of money through the traffic by "exploiting" the copyrighted works of others. So on what legal ground do they stand with their services?

My assumption on a very weak one but nobody cares because they provide the traffic. No harm done therefore no law-suits. But on a pure legal basis I assume what they are doing is ultimately also violating copyright.

Thanks a lot for all your comments and for instilling some wisdom into the humble mind of a newbie-domainer )

Greetings to all
CoolDot

 

[jberryhill]

"Isn't EVERY search-engine, and especially every search-engine that indexes all the pictures on the web, violating copyright constantly?"

That one narrow question has been asked and answered in litigation:

http://news.com.com/2100-1025_3-1023629.html?tag=bplst

The broader question has not:

http://news.com.com/2100-1038_3-1024234.html?tag=mainstry

"So two different PRACTICES of the law according to who you are?"

Yes. Just like medical care, shelter, food, and everything else.

 

[CoolDot]

>Yes. Just like medical care, shelter, food, and everything else.

As I said before. I am glad that mankind is where it is (at least here in America), but we still got a long way to go...

Thanks for the links!

 

[jberryhill]

"at least here in America"

Are you including Canada in that? Because just about everywhere else, you are at least entitled to some degree of medical care.

Life, in general, is better for people who have more money than other people. Yes, with more money, you can afford more legal services, better food, a nicer place to live, etc. The entire motivating point of the worship of money in the United States is that you get more and better stuff than people who don't have as much money as you do. You will live longer, you won't get the same sorts of diseases, the list goes on and on.

So it should come as no shock that the legal system is no different.

In running a business of any kind, you have to trade off risk against perceived reward. Legal junk is just another area of risk that goes into the mix of running a business. If you don't have the bankroll to play at the fifty dollar table, then you have to find the ten dollar table, or play the slots.

The interesting thing about domain names is I can't really think of anywhere else where, for a ten dollar investment, you can put yourself at loggerheads with a multinational corporation and face six digit damages.

 

[CoolDot]

All your comments about society make sense. Still I do think that the legal system SHOULD be different. Rule of Law is the one thing that is at the foundation of our civilisation. It doesn't surprise me that, like with everything else, there are different classes of law-services, but the legal system SHOULD be striving towards treating EVERYBODY the same, no matter if big company or poor guy.

We should never be satisfied if something so fundamental as the law is still hijacked by the rich and famous. The protection of the law is too important to our society as a whole as to ever allow it to stay in that state.

Like healthcare for all, human rights for all, and other high ideals, the legal system also is a fundament of who we are as a people and we should do whatever we can to bring it closer to the ideal.

>The interesting thing about domain names is I can't really think of anywhere else where, for a ten dollar investment, you can put yourself at loggerheads with a multinational corporation and face six digit damages.

That is certainly true )

Thank you for your comments!