9th Cir. Model Jury Instr. (Civil) 17.31

If the defendant is a service provider and is facing liability for copyright infringement based on system caching of copyrighted material, the defendant is not liable for money damages.

The defendant [name] contends that the defendant is a service provider and is not liable for copyright infringement because the intermediate and temporary storage of copyrighted material occurred during system caching. The defendant [name] has the burden of proving by a preponderance of the evidence that the defendant is eligible to use this defense and that the defense applies.

The defendant [name] is eligible to use the defense of system caching if the defendant:

First, is a service provider of network communication services, online services, or network access;

Second, adopted, reasonably implemented, and informed users of a policy to terminate users who are repeat copyright infringers;

Third, accommodated and did not interfere with standard technical measures used to identify or protect copyrighted works; and

Fourth, designated an agent to receive notifications of claimed infringement, and made the agent’s name, phone number, and email address available on its website and to the Copyright Office.

The defense of system caching applies if:

First, the material was made available online by a person other than the defendant [name];

Second, the material was not transmitted to, from, or at the request of the defendant [name];

Third, the storage of the copyrighted material occurred through an automatic technical process;

Fourth, the system caching did not modify the content of the material;

Fifth, the defendant [name] complied with the generally accepted rules concerning refreshing, reloading, or other updating of the material if specified by the person making material available online, unless the rules were used to prevent or unreasonably impair system caching;

Sixth, the defendant [name] did not interfere with the ability for the material to return to the original provider of the information;

Seventh, if access to the material was limited by a condition, the defendant [name] did not allow access to the material unless the requester satisfied that condition.

If you find that the defendant [name] has proved each of these elements, your verdict should be for the defendant [name]. If, on the other hand, you find that the defendant [name] has failed to prove any of these elements, the defendant [name] is not entitled to prevail on this affirmative defense.