Page:Copyright Office Compendium 3rd Edition - Full.djvu/636

, Third Edition 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.

1008.3(F) Determining the Publication Status of a Work Made Available Only Online

The applicant — not the U.S. Copyright Office — must determine whether a particular work is published or unpublished. This determination should be based on the facts that exist at the time the application is filed with the Office. As a general rule, the Office will accept the applicant's representation that website content is published or unpublished, unless that statement is implausible or is contradicted by information provided elsewhere in the registration materials or in the Office's records or by information that is known to the registration specialist.

In making this determination, the applicant may wish to consider the following general guidelines:

• Streamed-only content: Streaming is a performance, which, in and of itself, does not constitute a distribution of copies, because, as a practical matter, the user does not receive a copy. If a work is made available on a website only by streaming and not for download, it is not published.

• Express authorization to download content: If a work is expressly made available for download the work is deemed published, because a distribution occurs each time a user downloads a copy, such as when MP3s of a sound recording are offered for sale on a website or where a copy of software or a publication can be obtained by clicking on a "download now" button or similar link.

• Downloading or reproduction expressly prohibited: If a work is posted and displayed on a website and if there is a notice on the webpage, in the terms of service for the site, or in another obvious place stating that the work and/or all content on the site may not be downloaded, printed, or copied (or other statement to that effect), that work(s) may be deemed unpublished, because any copies that may be downloaded, printed, or otherwise distributed to the user have not been authorized by the copyright owner.

• Work posted without the authority of the copyright owner: The fact that a work was posted on a website without authorization from the copyright owner has no impact

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