Fair Use and the Internet

The advent and spread of Internet technologies have challenged Congress and the courts to maintain a balance between the free flow of information and the protection of intellectual property rights. Application of the fair use doctrine is one way courts endeavor to strike the proper balance.

Merely browsing a website containing copyrighted material may, theoretically, constitute copyright infringement. As one court has stated, “when a person browses a website, a copy of the website is made in the computer’s random access memory (RAM), to permit the viewing of the website’s material. And in making a copy, even a temporary one,” copyright’s reproduction, distribution, and public display rights are potentially violated. However, courts have acknowledged that while browsing may, on its face, infringe on copyright, it will, in most foreseeable cases, be a fair use.

Courts have held websites and other Internet service providers liable for infringements conducted through various Internet-related functions such as linking, media streaming, file-sharing and storage, the maintenance of electronic bulletin boards, and posting. Fair use, however, was successfully invoked in a case involving the use of low resolution, “thumbnail” copies of photographic images. Notwithstanding the low number of successful fair use claims, courts appear to be applying the fair use factors in a technologically neutral manner. That is, the new digital environment has not caused the courts to abandon or significantly deviate from traditional fair use analysis.