1008.3 (E) Intermediate or Buffer Copies Made in the Course of Streaming
When a work is performed or displayed online through streaming or browsing, temporary copies of that work are routinely made due to the way in which the internet operates. These intermediate copies are necessary to perform or display the work online. If the means of achieving a public performance or public display constituted a distribution in all cases, the right of public performance and public display would cease to be distinct and separate exclusive rights in the online environment. That would be contrary to Congress’s clear intention to explicitly recognize the divisibility of exclusive rights in the 1976 Act.
As discussed above, the U.S. Copyright Office does not consider a work “published” when it is made available online through a public performance or public display unless the copyright owner authorizes the end user to retain copies of that work. The fact that the user’s computer or other device makes intermediate copies, buffer copies, or other temporary digital copies during a performance or display of that work is irrelevant to this determination. Authorizing the performance or display of a work does not necessarily mean that the copyright owner authorized the end user to retain copies of the work. While temporary copies may or may not be fixed in the user’s computer or other device for a period of more than transitory duration, they are purely functional copies made solely for the purpose of facilitating the technological delivery of the performance or display. Typically the copyright owner does not intend for the user to permanently retain those copies on his or her computer, and any further use of those copies would be unauthorized by the owner.
Moreover, temporary copies made in the course of browsing websites do not reproduce the entire site, but only the pages displayed in the user’s web browser. When a website and its content are posted online, the copyright owner presumably gives users an implied license to create temporary copies for the purpose of viewing that content in a browser. But it is doubtful that an implied license would extend to authorizing the permanent reproduction of an entire website or its contents without clear authorization from the copyright owner.