To Cache or Not to Cache – That is the Question; P2P ‘System Caching’ – The Copyright Dilemma

Abstract

This paper explores the legal ramifications of the prevalent Internet Service Provider practice of providing caching services to P2P network users. First, the paper describes the P2P industry, its benefits and drawbacks. Then the paper discusses several caching techniques that can be implemented, and indeed are implemented, by ISPs around the globe. These practices allow ISPs to provide clients with better services but also expose them to copyright infringement suits by third parties. The article will discuss how copyright law should consider the costs and benefits to the public of P2P caching practices, especially in the application of legal doctrines such as direct and indirect infringement and fair use. In doing so, the article will build on recent interpretations by the courts regarding the general practice of caching. In light of policy considerations, the article will suggest reconsidering the scope of legal liability and safe harbor protection provided to ISPs with respect to caching practices. The authors’ argument is that unlike the consensus regarding the “orthodox” Cyberspace and World Wide Web, there is still no agreement on the legal approach to P2P services. Opinion is in fact divided between two schools – those who endorse P2P services and emphasize their current and potential future uses and those who focus on the mass infringing activity conducted via the P2P platform. These differences between the two polar schools will be exacerbated in the context of P2P caching due to its amplification of the costs and benefits of the use of P2P networks.