joegratz.net

A new startup called Webaroo launched their product a few days ago. It allows users to search web pages without an internet connection by gathering selected web pages into “packs”, then allowing users to download packs for subjects that interest them.

There’s an obvious problem — copyright. They’re making commercial use of the entirety of the web pages they copy, including the associated images. There’s pretty clearly no fair use defense. Further, this issue is likely to actually arise in litigation, since the offline viewing of web pages displaying advertisements deprives the web site owner of revenue from those advertisements.

I suspect that Webaroo believes itself to be covered by the safe harbor found in 17 U.S.C. 512(b) for “system caching”. But I’m not entirely sure that safe harbor applies to them. To be protected by the 512(b) safe harbor, the otherwise-infringing acts must take place as part of the following scenario.

A is a website owner (and our copyright infringement plaintiff); B is a service provider (and our copyright infringement defendant); C and D are users of B’s service. A’s web content is transmitted from A through B’s network to C, at C’s direction. B stores an “intermediate and transient” copy of A’s website. Thereafter, when C or D tries to access A’s website, they at least sometimes get the copy B stored instead. B is not allowed to modify the cached content. B must set up his cache such that, when D requests A’s website and gets a cached copy from B, A still gets all of the information she would have received if D had accessed her site directly.

There are a few other requirements, but those are the most important. I think the real snag may come in the 512(b)(2)(C) requirement, which requires that A’s website be able to phone home to A. There are several conditions on this requirement, but I think a JavaScript hit counter, like the ones used by bbclone or Google Analytics (and by this website), meets all relevant requirements. Webaroo’s cache doesn’t let website owners get information from such counters when their sites are accessed offline, so it would seem ineligible for the 512(b) safe harbor.

I suppose Webaroo would argue that it falls into the 512(b)(2)(C)(i) exception — that, because letting websites phone home is impossible when the user is offline, requiring all Webaroo users to be online so that the cached websites they visit can phone home would “significantly interfere with the performance of the provider’s system or network or with the intermediate storage of the material”.

We may never know the answer; Webaroo strikes me as a singularly silly idea in this age of ubiquitous network access, so time will tell whether the company is around long enough for someone to sue them. Then again, perhaps it will turn out to be startlingly popular with those who live in an area of low WiFi density and who are unwilling to pay for internet access through their cell phones.