Just two years ago, observers were predicting that lawsuits over so-called proxy-caching threatened to stop the practice in its tracks. To date, however, there are no known lawsuits involving the technology. But a recent column has rekindled debate over proxy-caching's propriety.
Proxy-caching is the process by which America Online and other large service providers copy the Web pages of third parties and store them on local servers. The practice spares the providers the server-intensive step of visiting a remote site repeatedly--each time an individual subscriber wants to visit a popular page--saving the service provider precious bandwidth.
The problem was that many legal observers worried the practice might violate copyright laws, which prohibit people from copying text, graphics, and other works without permission from the owner. While these fears haven't materialized in court, they have resurfaced on the Net, where a columnist on GomezWire is urging a class-action lawsuit against one of the best-known proxy-cachers, AOL.
"Many companies estimate that between 40 and 50 percent of their traffic is 'stolen' by AOL's proxy cache," the column, penned by John Robb, claims. "This result: lower ad and sponsorship revenues, an inability to plan correctly due to faulty traffic numbers, and a transfer of value from the company to AOL."
By comparison, most legal observers appear blasé about proxy caching. "People did think it was going to be one of the issues out there [two years ago]," said Eugene Volokh, a professor who follows cyberlaw at UCLA. "Because it was a matter that could be solved by reasonable people working it out...my assumption was that it would be worked out."
For one thing, Volokh and others point out, caching has benefits to content providers, so it may not be in their interest to take legal action, even if, technically, caching might be a violation of their rights. Added Ed Cavazos, senior vice president and general counsel of Interliant: a content provider "may have a right to sue them, but [AOL's] very natural response would be to block access to your site," robbing a site of an audience of 15 million subscribers.
A provision in the Digital Millennium Copyright Act, which became law in October, gives service providers who cache "safe harbor" as long as they meet certain criteria, said Dan Burk, a professor at Seaton Hall University. As long as cachers have a contact person to field complaints from content providers, do not change the content they cache, and employ industry protocols, they are immune from copyright suits targeting the behavior.
Tim Stevens, general counsel at Inktomi, which provides AOL and other companies with caching servers, said it is a simple task for content providers to prevent their material from being copied. "Anybody can put a header in a page that says 'do not cache,' and the Inktomi traffic server is smart enough to recognize it," he said. In addition, Inktomi's product keeps track of how many users read a particular page and can relay the information back to the source--allowing content providers to keep track of traffic statistics, such as the number of hits.
Content providers may not be lining up to sue over proxy-caching, but the legal status of the practice remains up in the air, cyberlaw experts said. "People are used to it happening, and may not realize that the fact that it goes on doesn't necessarily mean that it's legal," said Interliant's Cavazos.