Amazon introduced a new tablet today, the Kindle Fire, which uses the “Silk” browser, which is discussed here, and in the video below. One smart thing Silk does to speed up web browsing as seen by the user of the Kindle Fire by “pre-loading” content into Amazon’s “cache” in its own “Amazon computer cloud” (i.e. Amazon’s servers)–and to optimize them for the Kindle Fire (e.g., a 3MB image is scaled down maybe to 50k because that would look the same on the Kindle Fire as a 3MB image, but could be transmitted more quickly). But to do this Amazon’s servers have to store copies of files obtained from other websites, including images (as explicitly stated at 3:07 to 3:26) and other files which, of course, are covered by copyright. At 3:54, it’s explained that if Amazon’s computing cloud sees you looking at the New York Times home page, and it predicts, based on other user statistics, that you are somewhat likely to next click on some NY Times subpage link, then the Amazon servers will go ahead and download that next link, and cache it, in case you do click on it next, so that it can serve it up more quickly.
Now this makes sense technically, but what it really means is Amazon’s servers are making copies of other people’s copyright-protected content: images, files, NYTimes web pages, and serving them up to Kindle Fire users as if the Amazon computer cloud servers are the host of those images. It is a bit like if Amazon ran a site called NYTimes2.com, and had its servers constantly copying content from NYtimes.com and duplicating it on NYTimes2.com, and serving up the content on NYTimes2.com (which was copied from NYTimes.com) to browsers. And who can think that would not summon a lawsuit?
Now, does the idea make technical sense? Yeah. It’s brilliant. Does it infringe copyright? Well, I guess we’ll see! But thank God copyright is there to promote innovation!
Update: In comments on Facebook and elsewhere, several people have asked whether this isn’t just “temporary” or “ephemeral” caching that somehow does not “count” as copyright infringement. I’m of course aware of various provisions of the 1998 Digital Millenium Copyright Act (DMCA) (I taught this in a computer/Internet law class for two years at a local law school in 1998-99 and have written in this general area) ((See my articles “Copyright Infringement and Internet Service Providers,” “Are You Liable and What Can You Do About It” Colloquium for Internet Service Providers, June 11, 1996); “Whither Copyright Law? A Roadmap to Recent Changes in Copyright Law,”The Legal Intelligencer [Philadelphia], Sept. 4, 1997.)) There is a provision of the DMCA that purports to limit ISP liability for the purposes of caching (see 17 U.S.C. § 512(b); and Wikipedia articles on on this section and on web caching). For example, in the 2006 case Field v. Google (discussed here), a federal court ruled for Google when it was accused of copyright infringement because it was caching the plaintiff’s website and making a copy of it available on its search engine.
However, it is not immediately clear to me that the “caching” Amazon plans to do is the same as that done by Google or, in any case, that the “caching” is protected under the statute. Google is providing search results; it is not serving up web pages in place of the original host. And Section 512(b) of the DMCA, which concerns the practice of caching, specifies that “A service provider shall not be liable … for infringement of copyright by reason of the intermediate and temporary storage of material … ” It also provides conditions that must be met for this limitation of copyright liability to apply, including “the material … is transmitted to the subsequent users … without modification to its content….” What is “temporary”? The way I understand the amazon cloud working, it could store sites, pages, and files for months, or even longer. Is that temporary? And if a 50k version of an image is sent to the user instead of a 3MB version, is that a modification of the content? It seems to me that there is enough uncertainty here in the statutory language that some content provider or copyright troll wanting to cause trouble could make an argument against Amazon’s caching practices. Professor Tushnet in the comments below says that Amazon needs to “follow any rules that the originating website has about refreshing content” [which is in Sec. 512(b)(2)(B)] and observes that there is no reason to think Amazon will cache the files “forever.” It’s not clear to me that satisfying the rules for refreshing implies that “temporary” in the statute means “not forever.” If the files for a relatively static site, that changes rarely, are downloaded by the Amazon server, it could be serving up the files for a whole website or web page for months or more. This is compliant with the originating site’s rules on refreshing, perhaps, but is it “temporary”?
Professor Tushnet also says that that “automatic conversion for convenience into a different format or resolution is fine,” i.e., that there is no concern about modifying files, pointing to the case IO Group, Inc. v. Veoh Networks, Inc. Again, she may be right; but that case dealt with Sec. 512(c), not (b), so it’s not clear to me that Amazon’s scaling and optimizing of the stored files satisfies the “without modification” requirement of Sec. 512(b).
Professor Tushnet also says, “You could say that anything is uncertain until specifically litigated. But I don’t think that’s true, and I don’t think people should behave as if it is true; that just lets copyright expand ever further.” I appreciate this, but the problem with legislation as a general matter is that it is almost always inherently vague ((See John Hasnas, The Myth of the Rule of Law.)) and its provisions self-contradictory or contrary to those in other statutes or natural rights. When we have copyright trolls suing left and right, is it possible someone might sue Amazon for copyright infringement despite Amazon having good arguments that they qualify for the DMCA’s caching safe harbor rules? Sure. Is it possible Amazon would lose? I could be wrong, but it seems to me they could.
Now, I suspect Amazon’s lawyers have gone through this and think they have good arguments that their caching is not copyright infringement. But who knows? My point in this post was not that this is definitely copyright infringement–just that there is legal uncertainty, and it “could” be–that’s why I concluded the original post, “Does it infringe copyright? Well, I guess we’ll see!” If it turns out that it is, this just shows another problem with copyright: that it would prevent this kind of great technology. And even if it doesn’t prevent it, until we know for sure, there is legal uncertainty. And, of course, one problem with legislation is that it increases uncertainty (see my “Legislation and Law in a Free Society”).